Academic

Kolber on Comparative Punishment

By Lawrence Solum

Adam J. Kolber (University of San Diego School of Law) has posted The Comparative Nature of Punishment on SSRN.  Here is the abstract:

Suppose we punished people by forced poverty. Instead of a traditional dollar fine, we would limit offenders' personal possessions to the bare essentials. For a one-year period of forced poverty, a billionaire would lose access to his billions, while a person with just the bare essentials would lose nothing. Clearly, a year of forced poverty has a disproportionally severe impact on the billionaire.

Now suppose instead that the billionaire and the poor person are sentenced to prison for a year. In prison, we will, in fact, punish them with forced poverty by limiting their personal possessions to just the bare essentials. Yet many people treat such sentences as equal because they have the same duration. How can forced poverty be an unfair stand-alone punishment but a fair one when combined with imprisonment?

The answer is that the punishment is unfair in both scenarios. We mistakenly evaluate the severity of prison by measuring only the condition that prison imposes on offenders, without looking at offenders' baseline conditions. This absolutist approach to punishment severity ignores half of what matters about punishment, because it fails to recognize that punishment is fundamentally comparative in nature. In order to judge punishment severity properly, I argue, we must compare an offender's unpunished, baseline condition to his worse, punished condition. The billionaire and the poor person differ in their baseline wealth, but as I explain, wealth is just one of many ways in which offenders' baselines differ. Proper recognition of the comparative nature of punishment requires us to either dramatically change our sentencing practices to take baselines into account or give up, in large measure, on the goal of proportional punishment.

And from the paper:

[I]magine that a homeless man is viciously beaten by Stuart and now lies bleeding on the ground. Unaware of precisely what happened to the homeless man, Tommy comes by and plucks three hairs from the head of the homeless man, causing him very modest additional pain. As a result of their actions, both Stuart and Tommy have causally contributed to the homeless man?s harmed condition. On an absolute view of harm, however, we cannot account for the much greater harm caused by Stuart than caused by Tommy. This is precisely how poor an absolute conception of harm is at assessing harm severity.

Is there some way we could account for the difference in what Stuart and Tommy did to the homeless man in absolute terms? Can we say that Stuart was a much more substantial cause of the homeless man?s final, absolute condition than Tommy was? No, we cannot. Doing so only hides the underlying comparative analysis. The difference in their causal contribution depends on the change in the homeless man?s condition caused by Stuart relative to the change in his condition caused by Tommy. The comparative conception of harm and punishment severity is inescapable.

Interesting and recommended.

Full post as published by Legal Theory Blog on September 23, 2008 (boomark / email).