Academic

Bronsteen, Buccafusco, and Masur on Happiness and Punishment

By Lawrence Solum

John Bronsteen , Christopher J. Buccafusco and Jonathan S. Masur (Loyola University Chicago School of Law , University of Chicago - Law School , University of Illinois College of Law and University of Chicago - Law School) have posted Happiness and Punishment on SSRN. Here is the abstract:

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by even short periods of incarceration. These twin phenomena significantly disrupt efforts to attain proportionality between crime and punishment and to achieve effective marginal deterrence. Hedonic psychology thus threatens to upend conventional conceptions of punishment and requires retributivists and utilitarians to find novel methods of calibrating traditional punitive sanctions if they are to maintain the foundations upon which punishment theory rests.

And from the paper:

For a retributivist of any stripe, it is of core importance to understand the actual amount of harm that punishment inflicts. The retributive theory supplanted utilitarianism principally by emphasizing that it is unacceptable to punish the innocent or to punish excessively the guilty, even if doing so would increase utility. A cornerstone of retributivism is thus that the state may impose suffering only on those who deserve it (criminal offenders) and only in an amount that they deserve (proportional to the severity of their wrongdoing). For most retributivists, imposing deserved punishment is not only permissible but also required. Imposing too much harm for a minor crime is unacceptable under the theory, as is imposing too little harm for a major crime. It would be wrong, on the retributivist account, to allowa murderer to go unpunished or to give him an insufficiently severe punishment (such as a small fine). Therefore, retribution can be implem ne. This Part onsiders several leading theories from the retributive family and evaluat ose theories are affected by the ehavioral insights about punishment detailed in Part II. has been displaced in both arenas in the past few decades. In political ented only via a spectrum of punishments that impose varying degrees of harm. The level of harm must be adjusted to accord with the offender?s desert.

* * *

If a criminal justice system offers only the blunt choice between a small imposition of harm (a fine) and a large imposition of harm (a prison term), then it denies the state the capacity to tailor a punishment to fit the crime. This thwarts the system from fulfilling the demands of retributive punishment theories. Moreover, if increasing the amount of a fine or the length of a prison term does not meaningfully increase the harm imposed on an offender, then any quantum of punishment carries less retributive force than has been supposed. Adaptation dulls the punitive effect of fines and incarceration, thereby changing the calculus by which a retributive theory must assign amounts of punishment. If X amount of harm is deserved, will a fine of N dollars be sufficient to impose that harm? The answer must take into account the (large) effect of adaptation and accordingly reduce the level of harm equated with the fine.

Highly recommended.  A very interesting and readable paper.

The argument in the passage from the text quoted above assumes that subjective happiness and "harm" are on the same scale, but that assumption is not necessarily shared by retributivists.  For example, suppose that a retributivist believed that the morally relevant "harm" was "reduction in objective eudaimonia"  (happiness in the neoAristotelian sense of "rational and social activity that expresses the human excellences").  Subjective adaption to reduction in in objective happiness would simply not be relevant to the question whether the level of punishment inflicted was deserved.

Read Bronsteen, Buccafusco, and Masur!

Full post as published by Legal Theory Blog on August 22, 2008 (boomark / email).