Academic

Kolber on the Subjective Experience of Punishment

By Lawrence Solum

Adam J. Kolber (Princeton University, Center for Human Values) has posted The Subjective Experience of Punishment on SSRN.  Here is the 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. Our sentencing policies seek to equalize the duration of their incarceration, yet largely ignore the differences in their experiences of isolation, stigma, and confinement. In this article, I argue that, according to our prevailing theories of punishment, the subjective experience of punishment matters. There is, therefore, a disconnect between our punishment practices and our best attempts to justify those practices.

There are three possible responses. First, we could try to modify or expand our theories to avoid the obligation to calibrate punishment. I show why this approach is unlikely to succeed. Second, we could conclude that, even though we ought to calibrate our punishments, doing so would be too costly or difficult to administer. This response is too hasty. In civil litigation, we do make subjective assessments of damages. Advances in neuroscience may someday make these assessments more accurate and less expensive. Even if we cannot individually calibrate punishments, we can surely enact sentencing policies that are more subjectively-sensitive than the policies we have now. We are left, then, with only the third response: to recognize that subjective experience matters in assessments of punishment severity and to take at least modest steps toward calibrating punishment, either through individual measurement or, more feasibly, by enacting punishment policies that are subjectively sensitive.

And from the text:

Other retributivists focus less on the subjective experience of suffering and more on certain deprivations that we impose on offenders in a more objective sense. In a relatively common formulation, offenders deserve, not the experience of suffering, but rather deprivations of liberty.45 On this view, incarcerated criminals deserve to lose certain rights of citizenship (like their rights to vote, to associate, and to move about freely) because of their prior criminal behavior. At first glance, it might seem like loss-of-liberty retributivists are not committed to the belief that subjective experience is an essential factor in measuring punishment severity. Rather, they might suggest, punishment severity is a function of the degree to which we deprive offenders of their liberty.

Yet, in order to fill in the details about why loss of liberty constitutes punishment, we soon recognize the importance of considering the offender?s subjective experience of the lost liberty. I argue that loss-of-liberty retributivists cannot provide an appealing account of punishment without taking subjective experience into consideration. Thus, loss-of-liberty retributivists face the same problems as experiential-suffering retributivists. I defend this claim by arguing that: (1) a person cannot be punished by a loss of liberty without subjective awareness of the loss of liberty, (2) we must attend to subjective experience in order to determine which losses of liberty constitute punishments, and (3) offenders will experience losses of liberty quite differently from each other, such that one must consider the subjective experience of a loss of liberty or else one?s punishment system will favor objectively-defined punishments over subjectively-defined punishments for reasons that seem quite arbitrary.

And finally:

Is it possible to develop a purely objective account of loss-of-liberty retributivism that is non-arbitrary? I doubt that it is. Suppose we say that there are certain objectively-defined activities that one can do in a large space that one cannot do in a small space (like trace the contours of a regulation baseball diamond). While true, there are also activities that one can do in a small space but not a large one (like climb up one?s cell by pressing one?s legs against parallel cell walls). How do we decide which liberty deprivation is more severe? These intentionally odd examples illustrate that we cannot determine the value of a particular freedom without knowing how that freedom affects the life experiences of human beings. And even if we know how the activities affect a typical person, the objectivist will have to explain why we should apply an analysis developed for typical people to some actual human being about to be punished. Of course, our ability to calibrate will be limited for pragmatic reasons. But it is better to recognize the practical, ever-changing limitations on our ability to measure subjective experiences as contingent features of early twenty-first century living rather than to build these limitations into our theory of what punishment is really all about.

I really enjoyed this fine paper by Kolber, although I am pretty sure I do not accept his argument.  Nonetheless, a compelling read and highly recommended.

Full post as published by Legal Theory Blog on February 06, 2008 (boomark / email).