Religion & Law

The Subjective Experience of Punishment

By Rob Vischer

Punishment theory is a recurring topic here on MoJ, and Princeton's Adam Kolber has posted an interesting paper that might prompt more conversation: The Subjective Experience of Punishment. (HT: Solum)  Here's 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.

I have no idea how this would work, but it raises a good question: should a Catholic legal theory of punishment focus more on the defendant's experience of retributive judgment or on society's legitimate expectations of retributive judgment?  Is the measure of "justice" viewed primarily through the defendant's perspective or through society's?  Or both?

Full post as published by Mirror of Justice on February 06, 2008 (boomark / email).