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Student Blogger - Dispelling the Myth of Punishment Proportionality

A die-hard retributivist and an efficiency-obsessed utilitarian walk into a bar... and start discussing punishment theory. Beyond their propensity for the abstruse, what might these two philosophical opponents share in common? If anything, it will be the belief that the intentional harm (punishment) a state inflicts upon its own citizens be calibrated to the perceived severity of the crimes those citizens commit. For the former, proportionality is fundamental; for the latter, the loss of marginal deterrence that follows imposition of disproportionate punishments would be unpalatable. How, then, does punishment affect the subjective well-being of those who are punished?  That is the question Professors Jonathan Masur, Josh Bronsteen, and Christopher Buccafusco set out to answer in their new paper, Happiness and Punishment (forthcoming U Chi L Rev), which they presented at the Crime and Punishment Workshop last week.

Using recent empirical research in hedonic psychology (that is, the study of subjective well-being), the authors arrived upon several interesting conclusions. First, monetary harm, it seems, has very little long-term effect on happiness, and as such, probably little punitive consequence. Increasing the size of the fine, moreover, does not decrease happiness proportionally?humans apparently adapt well to new financial circumstances (so long as the fines do not impede upon subsistence).

Second, and perhaps more important, imprisonment does not affect happiness in ways one might expect. Though those imprisoned experience a significant drop in happiness in the initial periods of confinement, adaption to suffering is seen here too, in the form of happiness rebound (though not to original levels). At the same time, no matter the length of incarceration, prisoners' happiness is negatively affected long term, a result which no adaptive mechanism seems to counteract. The latter result ought to make sense intuitively. Life after prison, encumbered by destroyed relationships, social stigma, difficulties with employment, and diseases acquired while incarcerated, naturally ought to be worse than life before.

The presentation attracted an unusually large number of faculty and students, many of whom raised interesting points. Why, for instance, pondered one faculty member, did longer prison terms not lead to increased unhappiness since more time spent away from family, friends, and significant others was likely to destroy those relationships more thoroughly? The likely answer: the initial period of imprisonment (say, one or two years) is sufficient to destroy most relationships, leading to a leveling off of the happiness function thereafter.

Also, what to make of the fact that imprisonment inevitably leads to irretrievable losses (e.g., not getting to watch one's kids grow up?), yet happiness appears to rebound relatively well regardless? First, adaptation does not result in a complete rebound in happiness, so presumably the net difference in happiness (before and after prison) already accounts for this loss, though it may be smaller than we might expect. Second, since measures of happiness are subjective, it is possible that prisoners either do not take into account such losses while reporting their happiness, or simply do not care about these losses in the first place.

Finally, much discussion focused on ways to break the adaptation phenomenon. Research suggests that introducing uncertainty will inhibit adaptation, but implementing such uncertainty is likely to prove costly, politically infeasible, or both. Arbitrary and capricious sentencing, infliction of low levels of constant pain, and random ex post shortening of sentences may all introduce uncertainty, but the slide into torture would be difficult to abate.

If the results the authors presented are indeed correct, in that humans do not respond to proportional increases in punishment, the current system may be worse off than anyone imagined. The choice between slapping a criminal on the wrist and ruining her life is hardly any choice at all. Though no immediate solution seems forthcoming, this paper raises troubling issues of policy that beg for changes accommodating of proportional punishments.

Full post as published by The University of Chicago Law School Faculty Blog on January 22, 2009 (boomark / email).