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.