Prison Conditions and Punishment Theory

The N.Y. Times reports that Dennis Kozlowski was sentenced today to 8 1/3-25 years in prison. I don't know enough about the facts of the case, the defendant's background, the harms his financial wrongdoings inflicted, etc., to comment on the sentence, other than to say that my own appearances before Justice Obus revealed him to be an eminently thoughtful and fair jurist, and on that ground alone I suspect that the sentence was well suited.

But, the Times article raises another interesting point: Unlike many federal white collar defendants who spend their increasingly long sentences in still low-security, and therefore generally safer, facilities, Kozlowski's entering the New York State prison system, where the "club fed" option does not exist. In State's prison, Kozlowski will experience an entirely different kind of incarceration than the Martha Stewarts of the world, with a much greater potential for him to be affected by prison violence.

The Times article references "legal analysts" who suggested that this difference in prison conditions may equalize Kozlowski's sentence, which includes parole eligibility, with the longer sentences received by some of his federal contemporaries. I have no idea whether Judge Obus weighed this factor in deciding sentence, although I doubt it.

What role, however, if any, should likely prison conditions play in a judge's sentencing determination when those conditions either seem disproportionately harsh in relation to the crime itself, or so aggravate the experience of incarceration as perhaps to change the character of the sentence itself?

With defendants convicted of particularly violent crimes--frequently child and other sex offenders--we often hear people say, "He'll get what he deserves in jail," suggesting that for some offenders prison violence properly is part of the punishment. With non-violent offenders such as Kozlowski, however, where most people probably would feel less comfortable expressly connecting prison violence to his just deserts or some utilitarian aim flowing from his incarceration, we seem to pretend that prison violence doesn't exist at sentencing. Instead, it's usually left to be addressed at some other level: legislation, prison policies, or 8th amendment claims, for example. The comment in the Times acknowledging this factor and offering it as partial justification for a sentence is very unusual, in my experience.

I suspect that if I had explicitly incorporated this factor into my sentencing arguments as a defense lawyer, judges wouldn't have bought it--and perhaps properly so. For example, the argument might go, "Your Honor, this non-violent offender will be incarcerated under conditions where he will likely experience prison violence, which he does not deserve. So, give him less time." Or, "Your Honor, this defendant has been convicted of child abuse and therefore likely will be the target of harsh prison violence, aggravating his punishment for every day he spends there. He consequently deserves less overall time, or we can accomplish our penal goals in less time."

Should sentencing judges more openly consider this factor in any manner in fashioning an appropriate sentence? If so, when? And, what objective guildlines possibly can guide this sort of consideration?