"The End of Liberty"

The title of this post is the title of this recent piece authored by Adam Kolber and just posted to SSRN.  Here is its abstract:

Theorists treat liberty as a great equalizer.  We can’t easily distribute equal welfare, but we can purport to distribute equal liberty. In fact, however, nothing about “equal liberty” is meaningfully equal.  To demonstrate, I turn not to familiar cases of distributing positive goods but to the distribution of a negative good, namely carceral punishment.  Many theorists believe we should impose proportional punishment by depriving offenders of liberty in proportion to their blameworthiness.  In this manner, equally blameworthy offenders are said to receive equal punishment when incarcerated for the same period of time.  Equal periods of incarceration do not yield equal punishments, however, because liberty cannot serve as the great equalizer theorists hope for.  Pretending it can prevents us from justifying the full harms of punishment or leads to such counterintuitive results that it makes proportional punishment an unattractive goal.