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April 13, 2010

"Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice"

The title of this post is the title of  this notable new paper from Professors Dan Markel and Chad Flanders now appearing on SSRN. Here is the abstract:

In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders.  The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.

Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound.  We don’t doubt the possibility that different people will react differently to the same infliction of punishment.  It seems foolish to deny that they will (although such claims can be exaggerated).  What we deny, in the main, is that this variance in the experience of punishment is critically relevant to the shape and justification of legal institutions meting out retributive punishment within a liberal democracy.

April 13, 2010 at 06:05 PM | Permalink


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Are we even practicing purely retributivist justice here in the U.S.? I was under the impression that we understand quite well that our system pursues a hybrid of goals, from retribution to deterrence to incapacitation to reform to restoration and back again. I was also under the impression that our society has a wealth of other important reasons for considering the differential effect of punishment on the punished. Many of us prefer for mothers to have access to their children as a part of their sentence. We like to separate out people by offense not just to punish them, but because we don't want young people getting excess punishment from violent recidivists, and because we understand that society differentially stigmatizes different types of offenders, and because the poor cannot afford the high bail that others can afford.

We're not just retributivists. What is the practical importance of this paper?

That said. There aren't any mentions of gender, race, motherhood, age, and hardly any talk of poverty or class. This paper seems like a moral, emotional reaction wrapped up in towers of abstract theory. Life on the ground doesn't seem to match at all. Of course the experience of a mother incarcerated away from her child is going to be significantly different from that of a single male without child, or even a female without child. And of course that should influence policy. It's not just about the mentally ill.


Posted by: Ronak | Apr 13, 2010 6:46:26 PM

That paper was actually laughable. First, it completely characterizes the subjectivist world view and thus sets up a straw man to attack. Of top of that, it goes on to claim that all the issues subjectivists have with retributivist justice is because subjectivists misunderstand them. Yeah, that's how you have a rational discussion about something: you're idiots and we are not, nanny nanny poo poo.

Posted by: Daniel | Apr 13, 2010 8:08:53 PM

That should read "completely MIScharacterizes..."

Posted by: Daniel | Apr 13, 2010 8:10:33 PM

I can't bother to read this. We recently had the Police Chief of Riverside drive his state car, in a totally blitzed condition...literally driving the wheels and rubber off. He was given a ride home by his cohorts, fined $1,400, and put on medical retirement at $147,000/ year, so he could attend his problems. It's the kind of sentence I'd like to be subjected to. These guys are about as real as the resigned governor asking $100,000 for words without context.

Posted by: Anthony | Apr 14, 2010 1:33:44 AM

The low chance of a consequence for most serious crime is evidence most of us are deterred by morality and upbringing. Single females cannot control hyper, aggressive, impulsive, intoxicated, selfish boys or even girls. The absence of fathers explains nearly all racial disparities. Minority families survived extreme stresses in history. They did not survive the all out assault by the feminist lawyer and its male running dogs, in the 1970's. This lawyer paid poor females to expel males. Crime rates in minority areas increased from a small disparity to a big disparity.

A minority of us are deterred by the small chance of arrest and hassle by the police. What is left over are a set of people with markedly below average fear, and markedly increased selfishness. They want their $5 for crack, and killing a resisting store clerk is not a big deal to them. The current set of prisoners is pretty extreme in their insensitivity to punishment or to the threat or risk of it. They hate jail,of course. However, their selfishness and greed make them forget the experience quickly, and they do not learn.

While it makes sense to individualize the remedy, this group is a distillate of extreme individuals. Punishment is a waste of time. The deterrence of others may take place, but violates the procedural due process of the defendant. One cannot punish the person to deter the speculative crimes of another in the future.

That leaves incapacitation as the sole mature, productive goal of the criminal law. The death penalty should be based on repetitive violent crimes as a form of incapacitation in social self-defense, not punishment. It should get rid of the entire violent, fearless, ultra-selfish birth cohort, and at the earliest age tolerable to the public. Any number under 17,000 a year is valid. The criminals take that many lives.

The lawyer must be removed from all responsible criminal law policy positions, including exclusion from all benches. Right now, the lawyer makes money from crime, and will not allow its prevention. This rent seeking policy applies to the most conservative of lawyers, such as Scalia. The immunization and enablement of some many violent crimes (5 million a year) and murders (17,000 a year, already 40% lower after the guidelines), makes the arrest, brief trial, and immediate execution of the lawyer hierarchy justified and a public safety necessity. A major lawyer created catastrophe, such as a terrorist nuclear attack, will make the public see this necessity. Punishment of suicidal terrorists is a waste of time.

Unfortunately, such an extreme, lawyer caused event would also threaten 1776. The snuffing out of that rare flower of Athens would be unforgivable.

I would like to see individualized, retribution tested on the rent seeking lawyer hierarchy. See if it helps. Rent seeking is a synonym for armed robbery, so severe punishment has full justification under the law.

Posted by: Supremacy Claus | Apr 14, 2010 6:49:23 AM

I see your Bentham on stilts and raise you a John Stuart Mill on rollerblades.

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