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January 10, 2009

"The Subjective Experience of Punishment" now in print

About a year ago I highlighted here Adam Kolber has SSRN draft titled "The Subjective Experience of Punishment."  I am now pleased to report that this draft is now in print here at the Columbia Law Review.  It appears that the abstract has changed a bit, and here is how it now reads: 

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. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences.

I make two central claims: First, a successful justification of punishment must take account of offenders’ subjective experiences when assessing punishment severity.  Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner.  Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress.  Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now. I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness.  I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.

January 10, 2009 at 12:22 PM | Permalink


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While this is not a new perspective, I certainly agree with it. The difficulty is making it work in practice. For example, I have long argued that we take too little notice of the subjective when it comes to victim impact. As anyone who has dealt with rape "survivors" knows, some people are traumatized by this experience for long periods of time, and other shake it off quickly. Some victims learn to forgive the person who harmed them, some do not. There is a wide wide wide diversity in subjective responses to crime, just as there is to environmental conditions in prisons.

The problem is how do you take account of these subjective experiences in a way that doesn't make the result look capricious or whimsical. Because there certainly is social utility to the perception that people who do the same crime get proportional sentences.

I admit that I don't have a ready answer to this question. I do believe that as a society and culture we fail (to our own harm) to take account of people's genuine subjective experiences in the world. At the same time, we have to be very careful in modern life to not go overboard least chaos ensue. Where the proper balance between these two extremes is, I don't know. But I admit that I don't think that as a culture we have found it yet.

Posted by: Daniel | Jan 10, 2009 12:44:47 PM

I honestly fail to see the point of such an excercise. The ability to quantify subjective prison or victim experience would appear a huge con game to me. We could just as easily perform a calculation based on the least sensitive convict and most sensitive victim and say that 75% of that value is the minimum punishment that crime X rates. The convict exposed himself to potentially life-changing punishment when choosing to commit the crime.

Penology as exact or even approximate science just strikes me as fantasy. I makes a nice article to pad publishing stats but not much else.

Posted by: Soronel Haetir | Jan 10, 2009 9:19:11 PM

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