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Monday, November 09, 2009

The Subjective Experience of Punishing

Criminal theorists are by now well acquainted with Professor Adam Kolber's provocative article dealing with the ways in which punishment, in order to be "proportionate," must account for the differences in which people feel the pain of punishment. The article is a challenge to retributivists -- those with the greatest theoretical interest in proportionality, the argument being that the objectivist advantages that retributivists claim over consequentialists are actually a mirage: unless retributivists can account in their sentencing schemes or decisions for the pain that Paris Hilton or Bernie Madoff will actually feel when sentenced to the same term as that hardened recidivist (and unless they can make the hardened recidivist really feel some serious pain), then the claim of objectivity is actually an illusion.  Retributivists of different stripes have responded (and, perhaps, are responding...Dan?) to Professor Kolber's claims.  For my money, a particularly short, sweet, and persuasive response has been made by Professor Ken Simons.  

But all of this talk of the relevance of subjectivity has me thinking along different lines.  If retributivists ought to care about the subjective experience of punishment, should they also care about the subjective experience of punishing?

The argument would be that when a criminal justice system assigns a certain punishment for a certain crime, those responsible for imposing sentence (judges, usually, but not always) will perceive the punishment meted out in different ways, based on their deeply subjective view of the correspondence of the gravity of the offense with the length, as well as the nature, of the punishment (that is, its proportionality).  Moreover, the community will perceive the sentence in a particular fashion, given their own background assumptions about punishment and proportionality.  A sentencer whose child was killed by a drunk driver may feel very differently about a sentence of probation, or 5 years, or 10 years, or whatever, to punish a DUI that results in death, than a sentencer who has had no such experience and who has himself on occasion driven a bit over the legal limit after a few too many.  The victim's mother will feel yet a different way about the selfsame sentence.  A sentencer who, as a youth, had been publicly 'shamed' by his high school principal as punishment for getting into a fight might feel very differently about the sort of punishment that was meted out by the Gementara court than another sentencer who had not had that experience.  And again, the public itself will have extremely various and unpredictable responses to the exact same punishment.

If we ought to be interested in how a defendant experiences punishment, why ought we not also be interested in how a sentencer, as well as the community at large, feels about punishment?  After all, in constructing a balanced and appropriate criminal justice system, the concerns of the state (and not only those of defendants) ought to make a difference.  I am assuming, of course, that one believes at least in some small measure in the expressive value of punishment.  And my wildly uneducated guess is that, when looking at exactly the same punishment, on average, most punishers and members of the community at large would subjectively believe it to be proportionate by comparison with what most of the punished subjectively believe.  Naturally there may be exceptions -- perhaps certain provisions of the Federal Sentencing Guidelines are subjectively viewed as disproportionate by punishers and punishees alike, in equal proportion.  But my guess would be that in the main, and on average, punishers think most sentences justified by comparison with what the punished subjectively believe.

What sorts of sentencing schemes would be most affected by the subjective experience of punishing?  This is a complicated question.  I suppose that the subjective experience of punishing would be most relevant in indeterminate sentencing systems.  If a sentencer is free to arrive at any sentence he or she wishes (or even free within a very great range), the subjective experience of punishing will make a significant difference to the justifiability of a particular punishment.

But even in a system with guidelines, there are often mechanisms for upward and downward departure, aggravating circumstances, and so on.  The subjective experience of punishing will matter here as well, as sentencers will feel differently about the degree to which a departure is justified and about what is a proportionate response to the specifics of a particular offense.

I, myself, am not especially persuaded that any of these subjective experiential differences ought to make any difference at all.  But if I did agree that the subjective experience of punishment ought to make a difference to the ways in which we mete out punishment, then I'd also want to know about how those who do the meting out (including the public, since it is really "we" -- the state -- who punish) themselves feel about the punishment imposed.  Indeed, it may be that when one somehow factors together the subjective experience of punishment with the subjective experience of punishing, one arrives at something that looks like...dare one say it...the Federal Sentencing Guidelines.  Oh, all right, maybe without some of those nasty crack/cocaine rules. 

Posted by Marc DeGirolami on November 9, 2009 at 02:54 PM | Permalink


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Interesting, thanks. I'll have to mull over Marc's post a bit more but quick thought is that perhaps we have more obligation to care about the SE of punishers than the punished!

FWIW, Chad Flanders and I have a piece coming out in Cal LR next year called something like "Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice." We respond to Adam and Bronsteen et al (Happiness and Punishment) and Shawn Bayern's new piece in New Crim LR.

We should have a draft up on SSRN in the next month or so and once it's up there, we will be keen to get comments.

(Btw, Marc, a defense of the structure of the FSG should not be so shocking, especially since, as I argue in my Luck or Law project, indeterminate sentencing as practiced around 30 states or so is likely unconstitutional -- once Williams is thrown out as inconsistent with the last 40 years of SCT jurisprudence...)

Posted by: Dan Markel | Nov 9, 2009 3:35:08 PM

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