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October 1, 2008

Kolber blogging on the comparative nature of punishment

Professor Adam Kolber has this new post at PrawfsBlawg talking about his new article, "The Comparative Nature of Punishment" (previously blogged here).  This new post concludes this way:

The bottom line is this: If we seek to punish offenders in proportion to their blameworthiness, we need to sentence them in a manner that takes their baselines into account. If doing so is impossible or too expensive, then we must acknowledge that we are failing to punish offenders proportionally. Importantly, making such an acknowledgment forces retributivists to give up, to a large extent, on a very intuitively appealing notion of proportionality. It also shrinks the divide between retributivists and consequentialists. If I am correct, neither view punishes offenders according to an intuitively appealing concept of proportionality.

In comments to this post, Kolber indicates that he is "not a defender of proportional, retributive punishment," in turn revealing that Kolber's main gaol with his new article is to take down the whole construct of proportional retributive punishment. 

Because I have never been quite able to get my mind around any satisfying account of proportional retributive punishment, I think I am a fan of Kolber's overall project.  But I have a feeling that some readers of this blog might not share my skepticism of proportional retributive punishment, and thus I wanted to flag again Kolber's on-going work in this interesting punishment theory arena.

October 1, 2008 at 03:18 PM | Permalink

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"The bottom line is this: If we seek to punish offenders in proportion to their blameworthiness, we need to sentence them in a manner that takes their baselines into account. If doing so is impossible or too expensive, then we must acknowledge that we are failing to punish offenders proportionally."

The issue I have with the these remarks is not the logic, it's that as a definitional matter I simply don't agree with the baseline he is using. The goal of sentencing is not to punish a criminal in proportion to their blameworthiness. I simply don't know where he gets that idea; it's fantastic to me. The fact that people have different psychological and/or social experiences in prison only violates the principle of proportionality if you believe that the punishment was based upon those factors to begin with; it is not. It cannot be so because there is no possible way the legislatures who set the sentences can (or do attempt) to take into account the myriad social and psychological factors of every criminal. The statutory sentencing limits as passed by the legislature is designed to reflect a social/cultural judgment as to the relationship of the seriousness of the crime in relationship to other crimes; it is a social judgment, not an individual one. So long as the judicially imposed sentence respects that proportionality the sentence is proportional regardless of how the prisoner experiences that sentence or how morally blameworthy he is.

The wackiest thing about his theory is that if you follow it to it's logical conclusion it is opposed to any type of rehabilitative experiences in prison. A person who is learning to become a better citizen creates a disproportionality between herself and the other non-model prisoners. I am sure that we can all agree that is this a terrible tragedy and we must eliminate model prisoners least they offend the rugrats sense of equality and fairness.

Posted by: Daniel | Oct 1, 2008 6:15:27 PM

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