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Wednesday, October 01, 2008

The Comparative Nature of Punishment

The law measures most harms by comparing two conditions: a harmed condition to a baseline condition.  If you crash into my car, we measure the value of the car after the crash compared to its value immediately beforehand.  The difference in value represents the amount of the harm.

When we imprison people, we impose a burden on people that is very much like a harm.  We remove people from the environment that they had been in and put them in a new, more restrictive one.  When we measure the burden imposed by incarceration, however, we generally examine only the condition of an inmate while imprisoned.  Usually, we ignore the inmate's baseline condition.

In this draft article, I argue that, if we seek to justify our punishments, we have to measure their severity comparatively.  That is, we have to compare an offender's punished condition to his baseline condition.  Otherwise, we are ignoring much of what makes a punishment severe.  Just as we cannot determine how much harm was caused by a car crash unless we measure the harm comparatively, we cannot determine how much of an imposition our punishments are unless we measure them comparatively. 

The bottom line is this: If we seek to punish offenders in proportion to their blameworthiness, we need to sentence them in a manner that takes their baselines into account.  If doing so is impossible or too expensive, then we must acknowledge that we are failing to punish offenders proportionally.  Importantly, making such an acknowledgement forces retributivists to give up, to a large extent, on a very intuitively appealing notion of proportionality.  It also shrinks the divide between retributivists and consequentialists.  If I am correct, neither view punishes offenders according to an intuitively appealing concept of proportionality.

Posted by Adam Kolber on October 1, 2008 at 12:29 PM | Permalink

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I should probably read the article before commenting, but this sounds like the reasoning that Dickie Scruggs shouldn't go to prison because he's already suffered enough--losing his legal career, prestige, and so on. FWIW, that argument grates against my sense of distributive fairness.

Posted by: Chris | Oct 1, 2008 2:08:17 PM

Prof. Kolber,

Is it possible, then, that an individual who commits murder could receive much less prison time than one who steals $500, given the baselines involved?

--Jonathan

Posted by: Jonathan | Oct 1, 2008 2:10:08 PM

Chris and Jonathan,

I'm not a defender of proportional, retributive punishment. So I would not feel compelled to give Scruggs a non-incarcerative sentence. Similarly, I find it hard to imagine circumstances where the murderer should get less prison time than the thief.

As I argue in the article, however, a proportional, retributive conception of punishment *could* lead to the sorts of situations you both find troubling. All the more reason perhaps not to favor such a conception of punishment.

Question for Chris: Does it grate against your sense of distributive fairness when pre-criminal-behavior Scruggs has lots more wealth and prestige than pre-criminal-behavior Ordinary Guy? If you're willing to tolerate the difference in their wealth and other assets before they commit crimes, why is it that prison must bring them down to the same level for the duration of their imprisonment? In other words, what bit of magic happens at the point of sentencing that explains why our egalitarian intuitions should suddenly kick-in?

Posted by: Adam Kolber | Oct 1, 2008 2:24:45 PM

"In other words, what bit of magic happens at the point of sentencing that explains why our egalitarian intuitions should suddenly kick-in?"

Perhaps the difference is that when the state imposes punishment, the state should be egalitarian. Punishing poor people more harshly because they have less to lose ignores the fact that the state did not impose the poverty (or perhaps if we think that the state did impose the poverty, we should conclude that poor people should be punished less harshly because the state has already treated them in a disadvantageous way).

Posted by: dwk | Oct 1, 2008 3:29:35 PM

No, Scruggs's wealth (assuming it was legitimately obtained!) doesn't itself bother me. DWK's answer seems about right to me. I guess I think state action to punish people should be wealth-blind, even though life isn't.

Posted by: Chris | Oct 1, 2008 3:40:51 PM

Chris and dwk: I think most people share your intuitions that we should level-off wealth differences in prison but not outside of prison. The question is: why? If we think wealth should be more level in general, then we could do so without bringing prison into the equation at all. So what is it about prison, in particular, that makes the egalitarian intuition kick-in? After all, when we fine people, we don't believe that their wealth should be equalized. If fines are a form of proportional punishment, then imprisonment cannot be (and vice versa).

In any event, even if prison should be egalitarian in the way that fits your intuitions, we should at least admit that the punishment is, to that extent, *disproportional*.

Thanks for your contributions.

Posted by: Adam Kolber | Oct 2, 2008 5:46:03 AM

"[W]e should level-off wealth differences in prison but not outside of prison." That's not quite my intuition. I think prison is about depriving someone of his or her liberty, and that the rich and poor should, when punished, be equally deprived of their liberty without considering how much it would hurt them. Ditto for fines.

Posted by: Chris | Oct 2, 2008 10:27:46 AM

Chris: The intuition you just described is precisely the one addressed in the paper. When a rich person and a poor person are placed in identical prison conditions for equal periods of time, they are not deprived equally of their liberties. The reason, as argue I in the paper, is that they differ in their baseline liberties. So when you put them in identical conditions, they have not been *equally deprived*.

You may think you have a conception of liberty that avoids this problem. I believe, however, that any concept of liberty that is rich enough to describe the severity of our punishments will also be one where we differ in our baseline levels of that liberty.

Posted by: Adam Kolber | Oct 2, 2008 10:48:21 AM

It may be rich enough, but it is also no longer a retributive system of punishment. Retribution must assign punishment based on what was done. If baseline liberties are taken into account, particularly if they relate to genetic, environmental, or other non-act related differences among individuals, then it is no longer a retributive system of punishment.

Posted by: Jonathan | Oct 2, 2008 12:39:55 PM

"When a rich person and a poor person are placed in identical prison conditions for equal periods of time, they are not deprived equally of their liberties. The reason, as argue I in the paper, is that they differ in their baseline liberties. So when you put them in identical conditions, they have not been *equally deprived*."

I understand that we disagree. I'm just defending my consistency on fines v. imprisonment, which I understood you to impugn. With all his money, Scruggs wouldn't feel a fine nearly as much as a poor person would--i.e., the rich and poor are not deprived equally of their enjoyment of money by equally-sized fines. And I don't think the law should take that into account either.

Posted by: Chris | Oct 3, 2008 12:25:06 PM

Didn't you also write the article where you argued that people who take prison well should have to serve longer sentences? It strikes me that with that article, and now this one, you're unintentionally (or maybe intentionally, I don't know) constructing a reductio ad absurdum of retributivism. Practically speaking, there's just no way to satisfy the conditions that you (rightly, I think) argue for.

Posted by: Asher | Oct 4, 2008 10:02:58 PM

Asher: It is true that I have written about the subjective experience of punishment. And I agree that, when you take seriously the notion of punishment severity, one could plausibly conclude that a proportional, retributive approach to punishment is unattractive. In fact, I believe I mention the reductio perspective in the current drafts of both papers.

Thanks for your comment.

Posted by: Adam Kolber | Oct 7, 2008 1:45:32 AM

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