Legal Commentary

The law measures most harms by comparing two conditions: a harmed condition to a baseline condition.  If you crash into my car, we measure the value of the car after the crash compared to its value immediately beforehand.  The difference in value represents the amount of the harm.

When we imprison people, we impose a burden on people that is very much like a harm.  We remove people from the environment that they had been in and put them in a new, more restrictive one.  When we measure the burden imposed by incarceration, however, we generally examine only the condition of an inmate while imprisoned.  Usually, we ignore the inmate's baseline condition.

In this draft article, I argue that, if we seek to justify our punishments, we have to measure their severity comparatively.  That is, we have to compare an offender's punished condition to his baseline condition.  Otherwise, we are ignoring much of what makes a punishment severe.  Just as we cannot determine how much harm was caused by a car crash unless we measure the harm comparatively, we cannot determine how much of an imposition our punishments are unless we measure them comparatively. 

The bottom line is this: If we seek to punish offenders in proportion to their blameworthiness, we need to sentence them in a manner that takes their baselines into account.  If doing so is impossible or too expensive, then we must acknowledge that we are failing to punish offenders proportionally.  Importantly, making such an acknowledgement forces retributivists to give up, to a large extent, on a very intuitively appealing notion of proportionality.  It also shrinks the divide between retributivists and consequentialists.  If I am correct, neither view punishes offenders according to an intuitively appealing concept of proportionality.