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September 14, 2008
"The Comparative Nature of Punishment"
The title of this post is the title of this new piece by Adam Kolber now available through SSRN. Here is the abstract:
Suppose we punished people by forced poverty. Instead of a traditional dollar fine, we would limit offenders' personal possessions to the bare essentials. For a one-year period of forced poverty, a billionaire would lose access to his billions, while a person with just the bare essentials would lose nothing. Clearly, a year of forced poverty has a disproportionally severe impact on the billionaire.
Now suppose instead that the billionaire and the poor person are sentenced to prison for a year. In prison, we will, in fact, punish them with forced poverty by limiting their personal possessions to just the bare essentials. Yet many people treat such sentences as equal because they have the same duration. How can forced poverty be an unfair stand-alone punishment but a fair one when combined with imprisonment?
The answer is that the punishment is unfair in both scenarios. We mistakenly evaluate the severity of prison by measuring only the condition that prison imposes on offenders, without looking at offenders' baseline conditions. This absolutist approach to punishment severity ignores half of what matters about punishment, because it fails to recognize that punishment is fundamentally comparative in nature. In order to judge punishment severity properly, I argue, we must compare an offender's unpunished, baseline condition to his worse, punished condition. The billionaire and the poor person differ in their baseline wealth, but as I explain, wealth is just one of many ways in which offenders' baselines differ. Proper recognition of the comparative nature of punishment requires us to either dramatically change our sentencing practices to take baselines into account or give up, in large measure, on the goal of proportional punishment.
Looks like another provocative and important piece on punishment theory from Professor Kolber.
September 14, 2008 at 01:17 PM | Permalink
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Comments
Alright, so we either come up with something a whole lot more comfortable for the billionare, or a whole lot less comfortable for the already impoverished.
Good luck selling that idea.
Posted by: Soronel Haetir | Sep 14, 2008 1:57:43 PM
"Proper recognition of the comparative nature of punishment requires us to either dramatically change our sentencing practices to take baselines into account or give up, in large measure, on the goal of proportional punishment."
I did not read the entire paper but this statement is false on its face. The historical notion of sentencing proportionality is that based on the relationship between the crime and the punishment, not the social or psychological condition of the offender. It is indisputable that not all people suffer equally by being imprisoned. So what? This is true no matter what you do. Not all people suffer equally from torture, not all people benefit equally even when they have the same amount of wealth. So long as you admit that there is genuine psychological diversity among human beings, it is vain to suggest that there is some abstract standard of proportionality to which a country can aspire.
Put another way: Professor, your conclusion is just another way of restating your assumption. The problem is that as a matter of historical reality society has never excepted that assumption to be true, and there is no good justification for assuming it to be true.
Posted by: Daniel | Sep 14, 2008 2:14:27 PM
that should be "accepted" in the final sentence.
Posted by: Daniel | Sep 14, 2008 2:16:11 PM
Daniel,
I may be mistaken, but you seem to ascribe ideas to Prof. B that are not his.
Posted by: Soronel Haetir | Sep 14, 2008 7:28:26 PM
Mmmmm. It's difficult for me to know if I am mistaken or not when I don't know what specific ideas you are referring too and your objections to my interpretation.
Posted by: Daniel | Sep 15, 2008 12:26:39 AM
If you consider the reality of prison - stigmatized and can't get a job, can't find a place to live, can't support oneself and family, denial of adequate medical care and therefore reduced lifespan, physical abuse by guards and inmates, mental abuse by sadistic guards and inmates, ability or inability to file an effective appeal and then if won have conviction expunged, etc. then what is meant by comparative punishment has a whole new meaning. In this country justice = money. No money = no justice because, even if you're innocent, if you are poor you have to plea bargain as guilty or you lose your job, maybe family, savings, health insurance, reputation, etc. and your "punishment" ends up even greater than if you pled out. This does not apply to the wealthy. Face it, you are guilty until proven innocent to the hilt - unless you have money.
Posted by: Dr. Linda Shelton | Sep 15, 2008 12:42:33 AM
Daniel,
I don't object to your characterization of the ideas, but afaict they come strictly from the cited paper, and not our blog host.
One idea I would add to my punishment proposal put forward the other week is this: any marriage the new felony convict is in shall be dissolved, with the spouse receiving 1/2 of any assets and the remainder surrendered to the government.
I doubt this addition makes the proposal any more palettable.
Posted by: Soronel Haetir | Sep 15, 2008 12:52:42 AM
What is the obsession with squashing every convict like a bug? To what end?
This country needs to learn that not everyone needs to go to jail for 20+ years and lose everything they've ever known, accomplished, saved or done.
Posted by: babalu | Sep 15, 2008 4:13:59 AM
Posted by: Dr. Linda Shelton | Sep 15, 2008 12:42:33 AM
Dr Shelton
Do you have a website contact info?
Do you work with defense teams?
Posted by: | Sep 15, 2008 7:49:55 AM
Babalu, The vast, vast, majority of sentences are for far less than 20 years. In fact, most are less than a year.
Posted by: S.cotus | Sep 15, 2008 7:55:01 AM
S.cotus has vast, vast nonsense to impart. Further, that there are "vast,vast" sentences is an implicit recognition of this country's incarceration...punishment fetish. Avast!
Posted by: Fluffy | Sep 15, 2008 9:27:07 AM
In the end, punishment is about the loss of freedom. Prison, other than death, being the ultimate loss of freedom, as all aspects are managed by other individuals. This is the ultimate punishment for the poor and the wealthy, because neither can hug their spouse, eat a cheeseburger or jog in Central Park.
Posted by: JT | Sep 15, 2008 11:26:00 AM
Soronel. Ah, I see. My mistake. When I said professor I mean the Professor whop wrote the article I was quoting not Professor Berman. I thought that was clear by context. Sorry for any confusion.
Posted by: Daniel | Sep 15, 2008 3:15:32 PM
It seems to me that the most direct assault on Professor Kolber's thesis is as follows: A poor person probably values that which he does possess at about the same level as the rich person. Thus, reducing a poor person to the bare essentials--e.g., bicycle, bedroom (shared with siblings, perhaps), minimum-wage paycheck--would deprive him of 100% of what he or she values, just as it would deprive a billionaire of 100% of what he or she values (e.g., mansion, yacht, etc.) during the tenure of imprisonment. In fact, the poor person might be deprived of more in the long run because the poor person probably paid the entirety of his or her savings in fines and is stuck with the bare essentials even upon release from prison. The billionaire could probably live on savings upon release from prison, retaining a significant part of what he or she values. And (after release) the billionaire felon, though deprived of the right to vote, could still influence politics by contributing to campaigns, whereas the poor felon has no means of doing so.
I haven't read the article, but the thesis seems far from convincing in the quoted text.
Posted by: Yuval Miller | Sep 15, 2008 5:56:05 PM
Before the word "bicycle" should appear the words "taking away his or her"
Posted by: Yuval Miller | Sep 15, 2008 6:13:27 PM
Sorry Fluffy but S.cotus is correct.
The most recent BJS report says that 50% of the state prisoners were released during FY05. If there were no prison admission half of the prisoners would be released in a year and three quarters by the end of three years and by then the most of the remaining prisoners would be lifers (about 7% of the original population) and the prison would become empty when the last lifer dies.
Posted by: John Neff | Sep 15, 2008 7:20:31 PM
Babalu
Your e-mail link doesn't work. Please e-mail me your e-mail address using link by clicking my name and I will respond.
Posted by: Dr Linda Shelton | Sep 15, 2008 8:19:39 PM
Policy makers have other goals in mind, and of course not in the forefront of mind or even spoken, when it comes to prisons. The little community out in rural Missouri has a state representative, a state senator, a Congressman, a U.S. Senator, and a block of voters in every election. When the leadmine closes, the shoe factory moves its jobs to Mexico, the crops fail, the moonshiners get busted, the Casino permit gets disapproved, these communities turn to new industries. Prisons, are not about crime and punishment.
I was involved in a class action suit a few years back when the state shipped 2500 inmates from Missouri prisons to Texas to be incarcerated in county jails and privately run jails because space was short in the prisons in Moberly and East Jesus. The outrage was not over the fact that these Texas jailers took it upon themselves to use police dogs to attack the inmates on day one to get them acclimated (Welcome to the Great State of Texas, n-word epithet!). No, when the training video depicting this was shown on national television, the outrage was from rural areas of Missouri with prisons that wanted expansion dollars and jobs for the locals.
When we talk about "policy" and "prisons" in the same conversation then we need to include the word "industry". Policy is made by the governors, state reps, state senators, mayors, congresspeople, newspapers. They all understand the power of the industry. Sentencing law and policy is about prison jobs and the prison industry. This is the great unspoken truth and needs to be addressed more in this blog.
Posted by: mpb | Sep 16, 2008 5:08:20 AM
The whole concept of punishment in America is warped. Historically it amounted to simply time in hell. From a prisoner's point of view the torture (beatings, rape, psychological abuse, inadequate food, lack of medical care - pain, limb loss, death) was equal if not worse than losing what you left behind. The reality is that those that are poor often lose job, savings, house, all possessions, family (divorces are common), and children even for short sentences. The wealthy have only lost a little time and then come back and resurrect their life using their money.
For a while prisons had some element of rehabilitation. Now there is very little - beautician training for women and furniture building for men. They are run by incompetent, ignorant, patronage workers and profiteers. As our leaders have been so inept that small town America has lost most industry, we built prisons in a lot of small towns to provide jobs. If you build too many prisons, you have to fill them. You have to give excessive sentences, no rehabilitation so prison becomes a revolving door, and abuse the law (police etc.) in arresting the innocent and using prisons as mental health warehouses and warehouses for the addicted.
There are very few of these officials who give a damn, let alone know anything useful. The politicians and policy makers are so far from the factory floor of reality in America that hope for realistic and helpful policies is dim.
The main thing prisoners learn right now is hate for the system, for the police, for the courts, for the guards and officials. Abuse of prisoners leads to this viscious cycle. I'm just really surprised that the body count of officers, lawyers, and judges isn't higher.
The second thing they learn is how to be better criminals. When you return to society without a job, with stigma, having lost everything - what do you think most do! All of you are naive if you think prison has ANY element of justice.
Justice to me is not just punishment - it is rehabilitation so that society can welcome the prisoner back into society as a productive citizen. There is none of this - been there and I'm innocent!
The answer to me is to limit the number of lawyers in Congress and legislatures to 49% of the total and to appoint two non-lawyers to the U.S. Supreme Court, and every State Supreme Court in the land. Heh! I'm ready for the job!
Posted by: Dr. Linda Shelton | Sep 16, 2008 7:36:19 AM
Prison populations are effectively capped by an implicit threat of a federal lawsuit claiming the civil rights of the prisoners have been violated because of severe overcrowding. There are two ways to enter prison for the first time, about six ways to return and about five ways to leave. As a consequence it is not obvious how a prison administration will respond to the problem of severe overcrowding.
The least costly remedies are to reduce admissions and increase releases and those remedies are applied first. However such remedies are gradual and some lack potency. If there is a crisis they will have to move prisoners and if they have had prior experience with private prisons they will resist political pressure to use them (I am not aware of any good reports about private prisons). If possible they will move them to another state prison system that has beds to lease.
The benefits of using private prisons are small when transportation and extra administrative costs are included and the risks are very large because they use unqualified and poorly trained staff. The only way they can make a profit is to keep their costs low and be very good at lobbying legislators. Fortunately the unions strongly oppose the use of private prisons.
My take is that sentencing policy is driven more by retribution than by job creation.
Posted by: John Neff | Sep 16, 2008 8:03:31 AM
I respectfully find the concept of the "comparative nature of punishment" to be irrelevant. What is punishment? Should it be pure retribution on one extreme or should it be analyzing the danger to society from the offender and the motivation, strengths, weaknesses, and rehabilitation potential of the offender, and then making a plan to transform the offender to a productive citizen, and if need be confining him or restricting his liberty in some way for the protection of society, at the other extreme? There is a little of this in theory in the practice of criminal law today, but none in reality. At least in C[r]ook County Illinois, presentence reports go into a big black hole and emotion and passion of the prosecutor, as well as political corruption determine sentencing.
Comparing unpushished "baseline condition" to "worst, punished condition" as Prof. Kolber suggests only deals with retribution. This is only half of the equation.
I wonder if we are asking the right questions. Is excessive imprisonment and forced poverty and destruction of offenders family, along with the costs this brings to society the answer to crime? I don't think so, but this is the present system of "justice" in America today.
Let's rethink "punishment", think out of the box, start at ground zero and bring reality and rationality back into "justice." What about mental health care, treating addiction as a disease, restorative justice, community service, education, and removing corruption and politics from the equation? I see a lot of lip service about this in Illinios, talking the talk, but no walking the walk.
Posted by: Dr Linda Shelton | Sep 16, 2008 10:29:50 AM
I quite agree with many of the points you make in this thread. One thing you neglect however is the reality of judicial competence. The reality is that most judges do not see their job as doing what you want them to do and frankly, they have neither the professional training nor the life experience to do it. Here in NM, we recently passed a law that required judges in traffic court to be lawyers. Lawyers may have solid legal training but that doesn't make them experts in life, in psychology, in sociology, in economics; nothing in their training as lawyers or as judges prepares them to fulfill the role you want them to do. Many cases today wind up in essence being a battle of the experts with the judge, if he is honest, unable to really tell what the heck is going on because he has no professional or life experience to detect the BS. If we are going to rethink what we mean by punishment, it will also be necessary to overhaul one of the most conservative institutions in the country: the legal profession.
Posted by: Daniel | Sep 16, 2008 2:24:48 PM
Daniel - bravo!
In C[r]ook County IL, you become a judge generally by paying a $10,000 bribe. This buys you the full support of the machine that forces employees of state offices to campaign for you on public time and put signs in their yards supporting your candidacy. That is common knowledge.
The judges are very poorly qualified and got the job by who they know and not because of what they know. The stupidist lawyers often become judges. I don't mean to denigrate the profession. That's just how I see it. I live in reality, not fantasy.
As a physician I am well aware that I am not qualified to do plastic surgery. After four years of medical school, I would have to do a seven year residency to perform the highest level of plastic surgery. I am aghast that a lawyer after just three years of law school and only learning federal law can practice at all without restrictions. Judges don't receive any advanced training! They don't have to be a master of all, just competent in the law. The judges in the Circuit Court of Cook County are sooo ignorant. One judge in response to telling her that case law and the Illinois Constitution make her ruling illegal and I quoted the case, said "I don't care," then jailed me for contempt for arguing with her as a pro se litigant. I don't give judges any slack. If they are wrong I say so and quote the authority. She is quite knowledgeable of Fourth Amendment issues, but is dumber than a bedbug concerning the rest of law.
I get this all the time. That is why I am writing a manual for judges and a book called "The Myth of American Justice." Justice, at least in C[r]ook County is in the eye of the beholder - no semblance to common law, case law, or statutory law.
As to the fact that many fields are so technical now that even with two experts, judges are lost, there will have to be an evolution in our system where judges with training in specific areas hear such complex cases. The country and states could make regional specialty courts for this purpose. There are really only a small percentage of cases that would require this.
If judges were forced to go for advanced training of 1-2 years to learn the law needed to be a judge, then I wouldn't be running into such nonsense. For more details of judicial misconduct mainly through arrogance, ignorance, and politics, e-mail me and I will send you the links to my writings. I wish all judges would take a deep breath when confronted with their failings, state "please explain" or "I'll take that under advisement", and stop shooting from the hip. Law should be reasoned and measured not summary and wild west styled.
As some because of my posts think I am a legal consultant, legal scholar, or whatever, I wish to clarify that I am NOT a lawyer. I am a physician (pediatrics and psychiatry - resuscitated the smallest set of surviving triplets in the world), a civil rights activist and self-made legal guru. I began studying law on my own, when I entered college at age 16 (I'm now 53) I have studied Supreme Court Law on my own for over 30 years. Perhaps this is because I knew Edward Levi, a constitutional expert and I like to read filings from my high school classmate, Erwin Chemerinsky, also a legal scholar. Ed was incredible in the law!
Anyway, I have been arrested 21 times in the last 6 years in retaliation for my whistle blower activities. I represented myself and won the first 19. Then my disabilites worsened and I hired a lawyer. I was wrongfully convicted of attacking an officer by "ramming him with my wheelchair" skinning his shins, despite congenitally weak arms and spinal injury, and of kicking him when he was standing up with my right leg causing chest "soreness" despite a partial hemiparesis which has impaired my right leg for > 10 years. I also was very weak at the time from illness. The fact is Sgt. Salemi attacked me in retaliation for loudly complainting they were violating my civil rights and because I four weeks previously had won a mandamus complaint against the Sheriff of Crook County. Needless to say, I am writing the appeal myself, but the system has seen fit to let the court reporters take > 1 year to type the transcripts. Despite no record and ill health, as well as immense family responsibilites I was sentenced to two years. This was a violation of US S Ct decision in Cunningham v. California and Illinois Statute.
I was recently released from the penitentiary and I am destitute. I have for many years consulted for malpractice attorneys and helped some civil rights attorneys. I have an unusual ability to self learn and have done so in law. I also have won several mandamus actions against Illinois and Cook County officials and have a federal habeas (for me) and a federal civil rights suit pending against a judge (total lack of jurisdiction removes immunity) and the Illinois Attorney General, who I consider to be one of the most incompetent officials and one of the biggest criminals in Illinois. I am an extremely active pro se litigant and I am annoying greatly the Illinois AG and the State's Attorney of Cook County who seem to have trouble winning cases I bring or they bring against me.
I have an immense amount of evidence that could be used for class actions suits on many topics against the Illinois Dept. of Corrections, the Cook County Jail, and several Departments in Illinois and Crook County. I wish I could find pro bono attorneys to help me or that I was as good at fund raising as I am at learning. I need to raise >$100,000 for a legal fund (both for my defense and for civil actions.) I am willing to act as a consultant on issues concerning malpractice, civil rights, and prisoner rights, as well as pro se rights, with the understanding I do not do this as a lawyer and do not give legal advice.
Posted by: Dr Linda Shelton | Sep 16, 2008 3:25:16 PM
“The answer is that the punishment is unfair in both scenarios.”
Agreed. But isn’t this the reason why there is discretion in sentencing?
”The problem is that as a matter of historical reality society has never [accepted] that assumption to be true, and there is no good justification for assuming it to be true.“
I disagree. Society and our legal system is very familiar with retributive justice.
Sentencing proportionality is…
1) why we have the death penalty for the most heinous crimes
2) basis of the Eight Amendment
3) behind the doctrine of mens rea
There are a few more but I'll stop now.
"Anyway, I have been arrested 21 times in the last 6 years in retaliation for my whistle blower activities."
Listen, police officers dislike a "rat" just as much as criminals. And I'm willing to bet, based on the amount of cheeks turned to prosecutorial misconduct in this nation, attorneys tend to feel the same way about whistle blowers. A good, honest, and wise attorney is hard to find--not to mention competent one.
Good luck.
Posted by: ange | Nov 10, 2008 6:18:35 PM
"Lawyers may have solid legal training but that doesn't make them experts in life, in psychology, in sociology, in economics; nothing in their training as lawyers or as judges prepares them to fulfill the role you want them to do.
Many cases today wind up in essence being a battle of the experts with the judge, if he is honest, unable to really tell what the heck is going on because he has no professional or life experience to detect the BS. If we are going to rethink what we mean by punishment, it will also be necessary to overhaul one of the most conservative institutions in the country: the legal profession."
EXACTLY!
As a society we want to "specialize" in a field. And the truth of the matter is that we are becoming a society of ignorant professionals who seek select domain knowledge in our area of interest.
Never mind that a good legal education takes into account the TOTAL criminal justice system and the related fields you already mentioned, including politics.
I often chuckle at some attorneys that post here who think they are God's gift to the world because they do a legal search on a code and understand how the court applied the law by conducting further legal research.
Ask these same "Gifts of God" what the implication of a policy is on society as a whole, they become clueless.
Posted by: a'e | Nov 10, 2008 6:45:22 PM
"Lawyers may have solid legal training but that doesn't make them experts in life, in psychology, in sociology, in economics; nothing in their training as lawyers or as judges prepares them to fulfill the role you want them to do.
Many cases today wind up in essence being a battle of the experts with the judge, if he is honest, unable to really tell what the heck is going on because he has no professional or life experience to detect the BS. If we are going to rethink what we mean by punishment, it will also be necessary to overhaul one of the most conservative institutions in the country: the legal profession."
EXACTLY!
As a society we want to "specialize" in a field. And the truth of the matter is that we are becoming a society of ignorant professionals who seek select domain knowledge in our area of interest.
Never mind that a good legal education takes into account the TOTAL criminal justice system and the related fields you already mentioned, including politics.
I often chuckle at some attorneys that post here who think they are God's gift to the world because they do a legal search on a code and understand how the court applied the law by conducting further legal research.
Ask these same "Gifts of God" what the implication of a policy is on society as a whole, they become clueless.
Posted by: a'e | Nov 10, 2008 6:46:27 PM
"Lawyers may have solid legal training but that doesn't make them experts in life, in psychology, in sociology, in economics; nothing in their training as lawyers or as judges prepares them to fulfill the role you want them to do.
Many cases today wind up in essence being a battle of the experts with the judge, if he is honest, unable to really tell what the heck is going on because he has no professional or life experience to detect the BS. If we are going to rethink what we mean by punishment, it will also be necessary to overhaul one of the most conservative institutions in the country: the legal profession."
EXACTLY!
As a society we want to "specialize" in a field. And the truth of the matter is that we are becoming a society of ignorant professionals who seek select domain knowledge in our area of interest.
Never mind that a good legal education takes into account the TOTAL criminal justice system and the related fields you already mentioned, including politics.
I often chuckle at some attorneys that post here who think they are God's gift to the world because they do a legal search on a code and understand how the court applied the law by conducting further legal research.
Ask these same "Gifts of God" what the implication of a policy is on society as a whole, they become clueless.
Posted by: a'e | Nov 10, 2008 6:47:34 PM
"Lawyers may have solid legal training but that doesn't make them experts in life, in psychology, in sociology, in economics; nothing in their training as lawyers or as judges prepares them to fulfill the role you want them to do.
Many cases today wind up in essence being a battle of the experts with the judge, if he is honest, unable to really tell what the heck is going on because he has no professional or life experience to detect the BS. If we are going to rethink what we mean by punishment, it will also be necessary to overhaul one of the most conservative institutions in the country: the legal profession."
EXACTLY!
As a society we want to "specialize" in a field. And the truth of the matter is that we are becoming a society of ignorant professionals who seek select domain knowledge in our area of interest.
Never mind that a good legal education takes into account the TOTAL criminal justice system and the related fields you already mentioned, including politics.
I often chuckle at some attorneys that post here who think they are God's gift to the world because they do a legal search on a code and understand how the court applied the law by conducting further legal research.
Ask these same "Gifts of God" what the implication of a policy is on society as a whole, they become clueless.
Posted by: a'e | Nov 10, 2008 6:56:45 PM
In regard to Babalu's statement and or opinion I have to strongly disagree with regard to punisments only lasting for less than a year in most cases, because in most cases the actual term of imprisonment does not end with the end of the jail or prison sentence, in most cases long after the guilty party has served their sentence and paid the price for their crime in full they go on to pay for the crime for the rest of their life in that they are judged by and persecuted for the crime by employers or prospective employers, credit agencies, and law infocement, and more importantly they are looked down upon by the general public and continue to pay for what they did or did not do for may years.
Posted by: Doug | Mar 1, 2009 10:01:00 AM
