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October 1, 2020

Some deep thoughts about how diverse experiences with prison might impact justifications for prison punishments

As I mentioned briefly at the very end of class, I fear that prison punishment (and especially diverse prison experiences) can often be "under-theorized" in our discussions of criminal justice systems and proposals for reform.  One article that has long influenced my thinking on these matters was Adam J. Kolber, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009) (available here).  Here is this provocative article's abstract:

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.

Lots of folks have had lots of reactions to Kolber's arguments, and one notable response is Kenneth W. Simons, Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment, 109 Colum. L. Rev. SIDEBAR 1 (2009) (available here).

October 1, 2020 in Theories of punishment | Permalink


I think Kolber’s argument is both intriguing and compelling. When reading, I kept thinking of the dissonance between readily taking into account the accused's subjective experience in finding guilt, but not in sentencing (apart from mitigation arguments). This reminds me of Professor Berman’s comment made during the first few weeks of class that courts care about defendants’ rights through trial, but less so in sentencing. Yet, under Kolber’s argument, “getting it right” in sentencing would require considering subjective characteristics of the defendant. I found this argument more persuasive than Simons’ reaction which I felt didn’t particularly say why we shouldn’t consider the subjective view along with objective factors. I think, however, that Simons’ argument that people may try to abuse a subjective system is probably true. Both authors discuss practical difficulties in implementation of a subjective theory or sentencing, but I think it is a valuable theory to keep in mind.

Posted by: Lily B. | Oct 4, 2020 9:09:04 PM

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