In Why Is It Wrong To Punish Thought? I defended an overlooked principle of criminalization that I called the Enforceability Constraint. The Enforceability Constraint holds that the state may punish transgressions of a given type only if the state in principle may forcibly disrupt such transgressions on the ground that they are criminal wrongs. As I argued in the essay, the reason why the state is forbidden from punishing thought is that the state is forbidden from forcibly disrupting a person’s mental states on the ground that they are criminally wrongful (as opposed to, say, on the ground that they pose a risk of imminent harm). My argument for the Enforceability Constraint was essentially moral. Suppose that the state would violate your rights if it disrupted a particular transgression of yours on the ground that it is a criminal wrong. It would seem to follow, or so I argued, that the state likewise would violate your rights if, acting for the reason that your transgression was a criminal wrong, the state imposed terrible consequences on you for committing it. But that is precisely what the state does when it punishes you.
Kiel Brennan-Marquez does not address this moral argument in his essay attacking the Enforceability Constraint. The gravamen of his attack is instead a supposed counterexample—the offense of being “under the influence” of intoxicating drugs. It is an offense that Brennan-Marquez claims the state may punish but may never forcibly disrupt on grounds of criminal wrongfulness. Relying on this example, Brennan-Marquez concludes that the Enforceability Constraint is not a legitimate restriction on state power. He then asserts somewhat paradoxically that if the Enforceability Constraint did restrict the state’s power to punish, it would unduly expand the state’s power to police.
I believe that Brennan-Marquez is mistaken on both counts. His counterexample is dubious, and the unjustified police violence he decries is not licensed or encouraged by the Enforceability Constraint.
Mendlow, Gabriel S. "May the State Punish What It May Not Prevent?" Ohio St. J. Crim. L. 17 (2020): 439-44.