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Monday, April 11, 2011

The Experiential Gap Between Tort and Criminal Law

Tort law pays quite a bit of attention to bad experiences.  Pain and suffering are taken seriously, both in terms of actual doctrine (we are instructed to compensate individual plaintiffs for the amount of pain and suffering they experience) and our justifications of doctrine (to provide corrective justice one must compensate for tortiously caused pain and suffering and to appropriately deter bad behavior, we need to consider the experiential harms those behaviors are likely to cause).  

Granted, it is difficult to identify physiological markers of current or past experiences like pain and suffering, so it is not surprising that tort law often resorts to rough proxy measurements (by considering, for example, whether plaintiffs were in a zone of danger or had physical manifestations of distress).  These inexact proxies for bad experiences reduce the likelihood that litigants will invent or exaggerate their symptoms.  But at least in tort contexts, the law purports to care about individualized measurements of harm.  If a person is falsely imprisoned, he can sue for the amount of harm that he experienced.  There is no general formula that converts objective measurements, like the number of hours falsely imprisoned and the dimensions of confinement, into amounts of compensation (see here at 1574).

Though we frequently fail to recognize it, experiences also matter in criminal contexts.  Technologies better able to assess experience can help us decide when a crime occurred, how blameworthy the perpetrator was, and how much punishment he should receive.  If we can measure the harm of, say, false imprisonment to individual tort plaintiffs (who have incentives to lie), then we can calculate the severity of confinement experienced by particular prisoners.  Moreover, we usually say that criminal defendants are entitled to more process than tort plaintiffs, not less.  While we presumably don’t want to spend the money to make such assessments of prisoners, we should not pretend that rough subjective assessments are impossible: they just cost more than we are willing to spend.

(Adapted from this forthcoming article, draft pp.163-164.)

Posted by Adam Kolber on April 11, 2011 at 09:10 AM | Permalink


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You make a good, broad point. We are hesitant to spend money to examine the subjective experiences of defendants/inmates just as we are hesitant to spend money on many other aspects of defendant/inmate justice.

Posted by: Adam Kolber | Apr 13, 2011 3:14:26 PM

"we usually say that criminal defendants are entitled to more process than tort plaintiffs, not less."

The relatively amount of due process has an empirical as well as a doctrinal dimension that is somewhat at odds with this traditional account. The amount of attorney time that goes into a tort case with represented parties on both sides greatly exceeds the amount of time spent on all but the very most serious criminal cases. Indeed, sometimes the same incident (e.g. an automobile accident) gives rise to both a tort and a criminal action, and there is a lot more going on in the court process in the tort action than in the criminal action. Preliminary hearings are often waived in low level felonies, there is (of course) no discovery on the prosecuting party's part through the court process other than a few search warrants, the number of witnesses involved is likely to be smaller (since a lot of witnesses in tort actions go to damages and causation of damages that aren't issues to the same extent or with the same precision in criminal actions), and while a defendant often receives full disclosure of what is in the prosecutor's file and is entitled (at least) to exculpatory evidence, a full scale investigation of the facts by the defense is pretty rare in criminal actions, but the norm in tort actions.

Also, testimony from the defendant is almost always available without significant penalty in a tort action, but is often practically unavailable as a good option to the criminal defendant due to prior criminal record impeachment concerns.

Posted by: ohwilleke | Apr 12, 2011 2:27:56 PM

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