Steven Arrigg Koh (Boston University School of Law) has posted The Punishment Paradox (100 Southern California Law Review __ (forthcoming 2026)) on SSRN. Here is the abstract:
What does criminal punishment do? Across centuries of criminal legal thought, a shared answer persists: punishment incapacitates the wrongdoer. And yet punishment sometimes yields its opposite. Paradoxically, punishment sometimes becomes a rallying point-expanding community identification and solidarity around the defendant. This Article shows this punishment paradox using the 2023-24 prosecutions of President Trump and recent and historical case examples-from Luigi Mangione to Karen Read to Rosa Parks. By arguing that criminal law can generate solidarity rather than stigma, the Article both rethinks foundational theories of punishment and reconsiders the role of criminal law in democratic politics. Such an approach transcends the commonplace of “lawfare” and “no one is above the law.