"Against Proportional Punishment"

The title of this post is the title of this new article on SSRN by Adam Kolber.  Here is the abstract:

The Supreme Court has held that pretrial detainees are presumed innocent and that their detention does not constitute punishment. If convicted, however, detainees usually receive credit at sentencing for the time they spent in detention. We reduce their punishment by time spent unpunished.

Crediting time served conflicts with the commonly-held view that punishment should be proportional to blame. Offenders who deserve to be punished by one year in prison but are detained for a year before trial may be released immediately upon conviction and technically receive no punishment at all.

One way to solve the mystery of credit for time served is to recognize that people don’t care about proportional “punishment” in the narrow way the Supreme Court and many theorists use the term. Rather, they seek to dispense proportional “harsh treatment.” Even though pretrial detention is technically not punishment, it is harsh treatment inflicted by the state, and most believe offenders deserve credit for it.

Shifting our focus to proportional harsh treatment, however, solves one problem at the expense of several others. For once we broaden the notion of proportionality to encompass the harsh treatment of detention, we must consider other harsh treatment we inflict that, like detention, may not technically be considered punishment. Such harsh treatment depends on: (1) the particular facilities to which inmates are assigned; (2) how inmates experience those facilities; (3) how confinement harms them relative to their unpunished baselines; and (4) how they are affected by the collateral consequences of incarceration for decades to come. While we could try to salvage proportionality by better measuring all of this harsh treatment, I explain the sometimes absurd consequences of doing so.

Even though retributivist notions of proportionality are central to sentencing systems around the world and are widely thought to undergird core notions of criminal justice, when looked at closely, both proportional punishment and proportional harsh treatment have profoundly counterintuitive implications. Revealing the weaknesses in retributivist proportionality makes consequentialist punishment theories look correspondingly more appealing.