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October 8, 2009

The latest version of "The Comparative Nature of Punishment"

I blogged here last year about a new piece by Professor Adam Kolber titled "The Comparative Nature of Punishment."  I believe a new version of the piece (with what seems to be a new abstract) is up now here at SSRN. The whole piece is worth checking out again, as this revised abstract suggests:

Our assessments of the severity of prison sentences rest on a fundamental mistake. We deem inmates as receiving equal punishments when they are incarcerated for the same period of time under the same conditions. While doing so puts the inmates into identical situations, it does not change their situations equally unless they started out in identical circumstances. It is the amount by which we change offenders’ circumstances that determines the severity of their sentences.

In tort and contract law, we understand what a defendant has done to a plaintiff by examining the change in the plaintiff’s condition caused by the defendant. To assess the amount of an injury, we compare an injured party’s condition relative to the condition the party would have been in under other circumstances. For some reason, however, when we consider the treatment of prisoners, we ignore their baseline conditions.

To accurately assess punishment severity, I argue, we must compare an offender’s condition in prison relative to his baseline condition. This is the approach we use to measure the severity of certain kinds of punishment, like monetary fines. Fines specify an amount by which to change an offenders’ wealth. We never use fines to set equally culpable offenders’ net worth to the same level. But we do use prison to set equally blameworthy offenders’ liberties to the same level, even though offenders are deprived of liberty to different degrees depending on their baseline levels of liberty.

When we recognize the comparative nature of punishment, we see that, by putting two offenders in prison for equal durations, the offender with the better baseline condition may be punished more severely than the offender with the worse baseline condition. This means punishing one offender more severely than the other, even when they are equally culpable. I suspect that most people care little about correcting such inequalities.  The bottom line, I suspect, is that people care less about true punishment equality and proportionality than they realize.

October 8, 2009 at 04:16 PM | Permalink


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So if how we treat a millionaire getting tossed in prison is the amount of punishment that is actually needed to reach the desired goal, how do we inflict that same amount of punishment on someone entering the system from a much less advantageous position? Especially while staying within other legal strictures?

Posted by: Soronel Haetir | Oct 8, 2009 5:00:13 PM

"The bottom line, I suspect, is that people care less about true punishment equality and proportionality than they realize."

Frankly, I think this type of emotional manipulation is unbecoming of a professor. It's not an issue that people don't care; it's the reasonable minds can disagree on the best way to approach equality in the law. I don't think you can punish two people and not find some aspect of that punishment to be unequal. One of the reasons that we lock people up is because it is, relatively speaking, an objective standard. Trying to equalize subjective standards of punishment is a morass.

Posted by: Daniel | Oct 8, 2009 6:19:05 PM

Punishment has a circular definition involving retrospective counting of behavior. That which reduces a behavior is called a punishment. That which increases behavior is called a reward. To a Mexican peasant, federal prison is a paradise on earth. That includes the effusive customer friendly demeanor of the guards, compared to the lousy treatment he received at home. Live indoors, running water, bathrooms, catered meals, sports amenities, libraries, free medical care that is great, advocates looking out for his legal interests, networking with criminals, no stoop labor, no name calling, no daily beatings.

What more could a peasant expect?

Posted by: Supremacy Claus | Oct 8, 2009 9:35:02 PM

For those interested in this topic, Chad Flanders and I have a piece forthcoming in Cal L Rev in 2010 that addresses Kolber's arguments here, along with the arguments by others emphasizing the need to tailor punishments to defendants' subjective capacities, experiences, preferences, etc.

We'll post a draft on SSRN once Kolber's piece is finalized. It's tentatively called, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice.

Posted by: Dan Markel | Oct 13, 2009 8:35:20 PM

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