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October 19, 2010

"Retribution and the Experience of Punishment"

The title of this post is the title of this new forthcoming article from Professors John Bronsteen Christopher Buccafusco and Jonathan Masur that is now available via SSRN. It looks like the latest must-read for those interested in punishment theory and subjective punishment experiences.  Here is the abstract:

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment.  Punishment generally involves the imposition of negative experience.  The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience.  Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment.

Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount — as virtually everyone does — must therefore confront the implications of hedonic adaptation.  Moreover, the unadaptable negativity of post-prison life which is caused by the experience of imprisonment results in punishments that go on far longer than is typically assumed.  Objectivist retributive theories that fail to incorporate these facts risk creating grossly excessive punishments.  Certain retributivists have disputed the claim that adaptation is important to punishment theory, but their arguments are unavailing.

October 19, 2010 at 04:58 PM | Permalink


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Again, punishment is pain is the wrong definition. Punishment is a consequence that reduces the likelihood of a behavior in the future. And sometimes, pain can increase a behavior when it is rewarding.

Using that definition, almost all people in prison are punishment non-responders, including the frequent harsh punishment of corporal punishment over many years in childhood. That leaves incapacitation as the sole added value of the criminal justice system.

Posted by: Supremacy Claus | Oct 20, 2010 7:32:12 AM

Retribution is a goal of the criminal law from a religion, originating in Iraq of all places. It reflects the culture of those Iraqi tribes. Again, a religion based jurisprudence is not allowed in our secular nation. I am speaking of the Fall from Eden, and not of Sharia.

Posted by: Supremacy Claus | Oct 20, 2010 7:35:12 AM

Is punishment a pain? It has both shades under the cover and reflects upon the situation that demands around.

Posted by: texas adult drivers ed | Oct 20, 2010 7:54:03 AM

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