This Article argues that “punishment exemption”—the assumption that criminal punishment is exempt from traditional constitutional scrutiny—has no legal basis. Drawing on original empirical research, this Article first exposes a maze of modern non-carceral punishments that infringe on constitutional rights, justified by nothing more than the assertion that they are punishment and therefore permissible.

The widely accepted “Story Model” of jury decision-making acknowledges that juries, in large part, base their decisions not on logical or probabilistic reasoning but on the stories they construct at trial. Storytelling thus plays an important role in guaranteeing a criminal defendant a fair trial, especially where a defendant’s race triggers stereotypes that risk the presumption of innocence.

There is widespread recognition that algorithms in criminal law’s administration can impose negative racial and social effects. Scholars tend to offer two ways to address this concern through law—tinkering around the tools or abolishing the tools through law and policy. This Article contends that these paradigmatic interventions, though they may center racial disparities, legitimate the way race functions to structure society through the intersection of technology and law.

From ending qualified immunity, to establishing community control over policing, to eradicating the institution of policing altogether, proposals to remedy the issue of “police violence” are on everyone’s lips. But, in the deep reservoir of proposals, the meaning of “police violence” has received relatively little attention.

Punishment as a social institution has failed to live up to the quixotic ideals of theory and has descended into the practice of mass incarceration, which is one of the defining failures of modern times. Scholars have traditionally studied punishment and incarceration as parts of a social transaction between the criminal offender, whose crime imposes a cost to society, and the state that ensures the offender repays this debt by correcting past harms and preventing future offenses.