February 5, 2008
"The Subjective Experience of Punishment"
Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Our sentencing policies seek to equalize the duration of their incarceration, yet largely ignore the differences in their experiences of isolation, stigma, and confinement. In this article, I argue that, according to our prevailing theories of punishment, the subjective experience of punishment matters. There is, therefore, a disconnect between our punishment practices and our best attempts to justify those practices.
There are three possible responses. First, we could try to modify or expand our theories to avoid the obligation to calibrate punishment. I show why this approach is unlikely to succeed. Second, we could conclude that, even though we ought to calibrate our punishments, doing so would be too costly or difficult to administer. This response is too hasty. In civil litigation, we do make subjective assessments of damages. Advances in neuroscience may someday make these assessments more accurate and less expensive. Even if we cannot individually calibrate punishments, we can surely enact sentencing policies that are more subjectively-sensitive than the policies we have now. We are left, then, with only the third response: to recognize that subjective experience matters in assessments of punishment severity and to take at least modest steps toward calibrating punishment, either through individual measurement or, more feasibly, by enacting punishment policies that are subjectively sensitive.
Here is Larry Solum's mini-review: "I really enjoyed this fine paper by Kolber, although I am pretty sure I do not accept his argument. Nonetheless, a compelling read and highly recommended."
February 5, 2008 at 05:14 PM | Permalink
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Part of the problem with Kobler's argument is that, while the subjective experience of punishment may vary widely between individuals, their absolute life expectancy doesn't vary nearly as much.
Consider two men, both 40 and both newly convicted of murder. One is a very sensitive guy - so sensitive, in fact, that he will subjectively experience one year of imprisonment in the same way as the second tougher guy experiences 30 years. That being so, would it be just to permit the sensitive guy to resume his life after a relatively short time while putting the tougher one at risk of never seeing daylight again?
Posted by: Jonathan Edelstein | Feb 5, 2008 6:46:25 PM
We already have institutional means of treating subjective experiences differently for classes of people and individuals.
Roughly speaking, we presume that juveniles subjectively take incarceration harder, often have judges exercise discretion to allow leniency for elderly defendants, and sentence defendants with prior prison terms who are presumably more accustomed to incarceration to longer terms than those who are newcomers to incarceration who often receive short unenhanced sentences for first time offenders or probation (something close to 50% of felony convictions produce probation sentences in state courts).
The class of people who serve long prison sentences, with controversial exceptions like long mandatory minimums for first time offenders in federal court, tend to be a relatively homogeneous bunch of people compared to the general population. They tend to be less educated, less intelligent, substance abusing, men in the late primes of their lives with considerable prior incarceration experience.
This thesis may justify individualized judicial discretion, but unless we can identify people who take it harder in practice, it seems impractiable to make it policy to count subjective suffering as such.
In tax law, we use a disposable income rather than raw income definition of taxable income, and use graduated tax rates to approximate difference in relative marginal utility, but that is the best we can do.
Posted by: ohwilleke | Feb 5, 2008 7:15:46 PM
It is also worth noting that many Northern European countries use the concept of a "day-fine" where fines are based upon a certain number of days of wages (something that has produced the world's largest traffic tickets), as an intermediate sanction between petty offenses and medium grade misdemeanors.
This, of course, is expressly designed to capture subjective impact where it can be measured.
Posted by: ohwilleke | Feb 5, 2008 7:18:09 PM
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Posted by: The Insta Book | Feb 6, 2008 5:36:25 AM
Much of our sentencing system assumes that incarceration is seen by offenders as a harsher punishment than community supervision, but that actually isn't always borne out by research on offenders or the experience of defense counsel. Frequently offenders offered the choice between close community supervision and doing time will choose the latter, especially if the former, through detection of violations, will lead to the latter anyway. Studies of offenders' perceptions of how much incarceration time equals how much community supervision time are almost always shocking to those of us who actually slow down and stop as we approach yellow traffic lights. We in the law-abiding community focus on penalties that would deter or punish US. It's OUR sense of punishment fitting the crime that leads to our support of or opposition to policies when, in fact, the people we're trying to deter or punish may have different perceptions and priorities. If it's our sense of justice we're developing policies for, that's fine. If it's to promote maximum public safety, not so much. Kolber's article should certainly cause all of us to think through those options much more and better.
Posted by: Michael Connelly | Feb 6, 2008 8:57:45 AM
I think there's probably some factual validity to the claim that people experience punishment differently as advanced here, but I do not believe that this has any bearing on how a person should be sentenced. People should not be subject to increased punishment merely because they may be habituated to hardship. Implementation of this individualized treatment policy is offensive to the very notion of justice, which does not surprise me coming from what's essentially a utilitarian position.
Posted by: | Feb 7, 2008 4:29:55 AM
Is there an implicit argument here that 10 years in prison for a rich, white, white-collar, highly-educated individual is much harder on him than 10 years in prison for a poor, black/hispanic, blue-collar, gang-affiliated, street-wise, individual (assuming same prison, same initial security classification)? Maybe so, and I can't say that such an argument is wrong. If anyone has ever watched the HBO show "Oz" I'm sure they wouldn't be surprised or wouldn't call it pure fiction that the well-educated, white-collar, never-in-trouble-before white guy who was in there for intoxication manslaughter had the hardest time of anyone in the entire prison; the rest of the inmates being street-wise, blue-collar types with previous experience in the system. Of course there were poor, blue-collar, street-wise, uneducated WHITE people in there who fit in just fine -- that's important to note.
I see no way to remedy this, other than to sentence rich, white-collar people who have never been in trouble before less than other people convicted of the same crime. That would instantly be called racist, even though it is not overtly racist, it would just have a disparate impact on non-whites, as they would benefit 90% of the time (or more).
Posted by: bruce | Feb 7, 2008 10:16:18 AM
This has to be one of the most morally revolting pieces I have read in some time. What I found esp. horrific was this line, "Giving [the rich] a shorter sentence or better accommodations than [the poor] is not favoritism but rather is precisely what is required to treat them equally, if one takes seriously the notion of retributive suffering."
Posted by: karl | Feb 13, 2008 12:27:43 PM
Bruce, you appear to have missed Kolber's clear insistence that he does not endorse the conclusion you've just quoted. That is, he does not endorse retributivism, so he is not committed to going easy on wealthier defendants. He makes it quite clear right at the end of the introduction: "I do not argue that more sensitive (often wealthier) offenders should receive shorter prison sentences than less sensitive (often poorer) offenders who commit crimes of equal seriousness." The point of the piece is quite clearly not to endorse a policy of wealth discrimination in sentencing, but rather to show that at least some forms of proportional retributivism are implicitly committed to such a policy. The piece is not really geared toward policy, but is mostly (or most valuable as) a reductio ad absurdum of these forms of proportional retributivism.
Posted by: Andrew | Feb 18, 2009 2:00:18 PM
Sorry, I guess that was Karl I was responding to, not Bruce.
Posted by: Andrew | Feb 18, 2009 2:01:07 PM
why law has different punishment for those who are below 18 than those who are older than 18 years of age
Posted by: farid | May 4, 2009 3:36:44 AM