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Tuesday, March 11, 2008

The Subjective Experience of Punishment

I recently posted a draft of "The Subjective Experience of Punishment" (forthcoming, Columbia Law Review) on SSRN.  Here is the first paragraph:

Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility.  I argue that they have identical punishments in name only.  One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it.  Our sentencing policies seek to equalize the duration of their incarceration, yet largely ignore the differences in their experiences of isolation, stigma, and confinement.  In this article, I argue that, according to our prevailing theories of punishment, the subjective experience of punishment matters.  There is, therefore, a disconnect between our punishment practices and our best attempts to justify those practices.

I recently guest blogged about the paper at the Volokh Conspiracy (Intro-Part1 and Paris Hilton-Part2).  In a subsequent post, I'll talk about the implications of the paper for the appropriate punishment, if any, of Eliot Spitzer.

Posted by Adam Kolber on March 11, 2008 at 11:35 AM | Permalink


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Thanks Rick!

Posted by: Adam Kolber | Mar 12, 2008 10:35:32 AM

Adam, I'm really looking forward to this piece, and think you are really on to something. Ten years ago, in practice, I did a long sentencing memo -- a pitch for a downward departure -- that tried to make points similar to (I gather) yours. Congrats on the paper.

Posted by: Rick Garnett | Mar 12, 2008 9:46:56 AM

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