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Wednesday, March 28, 2012

Measuring Punishment Severity

H.L.A. Hart, perhaps the most influential punishment theorist of the twentieth century, famously claimed that a central feature of punishment is that it is “intentionally administered.” When people speak of acting intentionally, they sometimes mean acting with purpose (it is one's conscious goal for some result to occur) rather than just acting with foresight of the consequences of one's action. (Cf. Ken Simons' post earlier this month). Let's assume that, in order for conduct to be "intentional" in the sense required to be punishment, one must act on purpose.

Consider then two equally blameworthy offenders, Purp and Fore. They are alike in all pertinent respects and receive identical sentences in identical prisons. The only difference between them is that different aspects of their sentences are imposed intentionally. Purp is purposely limited in his liberty to move about, see family, have sex, express himself, possess personal property, vote, and so on. By contrast, Fore is purposely limited in moving about, but all of his other hardships are merely foreseen accoutrements of prison. Because these other hardships are not imposed purposely, they are technically not part of Fore’s “punishment” as scholars frequently understand the term. In other words, if we restrict "punishment" to only purposeful inflictions, we are led to the absurd conclusion that Purp and Fore receive punishments of different severity.

Of course, despite the different purposes surrounding their treatment, we tend to think that Purp and Fore are punished the same amount. The mental states of their punishers (be they judges, prison personnel, legislators, voters, or some combination of all of these) do not really affect the severity of their sentences. So long as the duration of their sentences and the conditions of their confinement are the same, we think that they receive the same amount of punishment. Thus, even if some scholars require "purpose" when deciding whether or not some conduct constitutes punishment, when assessing amounts of punishment, we consider not only purposeful hardships but also certain foreseen hardships as well.

I temporarily assumed that "intentional" refers only to purposeful conduct. One apparent solution to the Purp/Fore example is to understand the term "intentional" to include both purposeful and foreseen burdens on offenders. In that way, we could treat the burdens we foresee imposing as part of offenders' punishment, and Purp and Fore would indeed receive punishments of equal severity in line with our intuitions. While this may seem like a promising approach, it commits you to some surprising results. For example, it means that foreseen burdens (like the varying levels of sadness and anxiety prison induces) are part of a person's punishment and must be taken into account at sentencing, as explained here and here.

This blog post is adapted from the article, Unintentional Punishment, published in this month's issue of Legal Theory. The piece has been made freely-available courtesy of Brooklyn Law School. 

Posted by Adam Kolber on March 28, 2012 at 08:18 AM | Permalink


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There's much I like about your work in this area, and it's a reminder that ethical theories are as yet still not adept at explicitly incorporating the insights of moral psychology (broadly construed), nor for that matter, the body of recent excellent philosophical work on the emotions. I look forward to reading this with more care and hope your argument receives the publicity it deserves.

Posted by: Patrick S. O'Donnell | Mar 28, 2012 8:37:09 AM

Adam, why is it "surprising" that we would count foreseen burdens like sadness as part of a punishment? I don't think this is a bullet that one must bite at all -- it closely tracks at least some folk intuitions. Consider that prison activists often describe imprisoning people as torturing them in virtue of properties of prisons like the high level of prisoner on prisoner violence, rape, etc. I take it that with the thought "prison violence is torture" comes the thoughts "prison violence is part of prisoners' punishment" and "prison violence is intentional (though not purposeful)."

Posted by: Paul Gowder | Mar 28, 2012 11:18:14 AM

Thanks, Patrick, for your very kind words.

And thanks, Paul, for your thoughtful comments. Many will not find it surprising that the subjective experiences associated with incarceration are part of an offender's punishment (but, as I understand their views, Ken Simons, Dan Markel, Chad Flanders, and David Gray have sought to argue otherwise). The surprising conclusions come further down the road when the claim about subjective experience is paired with a theory of punishment.

For example, many believe that punishment should be proportional to blameworthiness. But suppose we have two offenders, Sensitive and Insensitive, who are equally blameworthy. Sensitive will foreseeably have a very difficult time in prison (he'll be very sad, anxious, and panicky), while Insensitive, though he will certainly dislike prison, will foreseeably keep himself together. If we seek to punish them equally and if the experiences foreseeably associated with confinement are, indeed, part of their punishment, then it seems like Sensitive should be given a shorter sentence than Insensitive (or at least a larger cell or some other accommodation).

I think many will find that conclusion surprising. And if they are willing to bite that bullet, too, then it seems like Paris Hilton (who, let us assume, is quite sensitive to confinement in small spaces) should spend a shorter time in prison than another less sensitive offender who commits a crime that makes him as blameworthy as her.

Posted by: Adam Kolber | Mar 28, 2012 11:58:47 AM

Hmm... interesting. As you probably can tell, I know next to nothing about punishment theory. I wonder whether that problem is unique to punishment, or a worry about general legal rules wherever they may be found, which notoriously do a poor job at accommodating individual difference? (Cf. for example, the eggshell skull plaintiff problem in tort law.)

It's also interesting that we have this intuition against accommodating psychological sensitivity in punishment, but not necessarily against accommodating physical sensitivity. Suppose, for example, that the local prison is next to a tannery, and Sensitive isn't psychologically sensitive, but chemically sensitive -- the fumes from the tannery make it unusually hard for him to breathe, give him hives and convulsions, etc. Would we have the same kinds of objections to relieving this unusual burden as we would to relieving Paris Hilton's? I doubt it. (Also striking, we'd probably describe the reason for relieving his burdens as rooted in a concern about humanitarianism, rather than equality.)

This is already a dense and convoluted comment, but let me toss out one more thought. Saying that we treat X and Y equally can only be true or false with respect to a criteria of relevance (i.e., "with equal respect," "equally burdensome sentences," "equal income," "an equal number of strokes of the whip"). It might be that we don't see psychological suffering as relevant to the normatively significant equality of a punishment. We might be more concerned with an expressive equality, in which the state communicates its evenhandedness by treating prisoners equally with respect to more concrete aspects of incarceration. If that's true (and it's pure speculation), it might be true even if we see subjective suffering as an intentional feature of punishment.

Posted by: Paul Gowder | Mar 28, 2012 12:16:30 PM

These are good questions, Paul, so no need to be hard on yourself.

I agree that some of the issues have applications well beyond the punishment context, and I start to take them on in this draft paper:

I think you're right that people tend to treat physical and mental problems differently. In part, it may stem from beliefs that physical problems are easier to prove. So one plausible response is that we *should* treat them the same but we do not for reasons of cost and administrability. Absent such costs (which raise empirical questions and may not stay so big in the future), it's especially difficult to defend the radically different ways we tend to treat physical and mental conditions. See here for more: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1488444

The expressivism point may be a bit much to take on in the comments, so I'll refer you to this piece: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1090337. In particular, my answer depends on whether one's understanding of expressivism is rooted in deontology or consequentialism.

Thanks, Paul!

Posted by: Adam Kolber | Mar 28, 2012 2:42:42 PM

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