An Update (Part 1)

I've finally had a few hours to clear some stuff off my plate, and that includes updating some drafts on SSRN. I'll do a few of these self-promotion information-dissemination posts over the next week or so. The first thing I'll report is that there's now a final version of a couple papers having to do with punishment theory and the subjectivity debate up there. I'll put the abstract of the more recent of the papers below the jump after a little background on a funny and trivial matter.

The first one, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice , came out last summer or fall, can't remember. Anyway, and oddly, the good folks at the law review wouldn't allow my co-author (Chad Flanders) and I to include a Table of Contents and Abstract in the published version because at the time, they had a policy of no abstracts or TOC's. We were kind of upset about this as it seemed like a ridiculous policy to have in the first instance--who doesn't love a good TOC and abstract? Moreover, we had submitted our piece with a TOC and abstract (and were not told at acceptance that we'd have to jettison it).  It was even weirder, we thought, for them to not budge, even though they acknowledged it was a silly rule, on the grounds that others were stuck with that rule in the volume, and so, we should be stuck with it too.  (Not sure how many complained though...) Anyway, after publication, one of the editors there was nice enough to format a TOC and abstract that we had written, and the version that's up on SSRN now has the published version following that TOC and abstract. Phew. 

To our delight, a few of our interlocutors in that project (Professors Bronsteen, Buccafusco & Masur) wrote a response to our article, and we wrote a reply (inviting along David Gray from UMaryland, with whom we had a shared interest on the merits of this debate). Our essay, Beyond Experience: Getting Retributive Justice Right, which is now up on SSRN, appeared in a new volume of the law review, and I guess because folks boortched about it previously, the editors of the new volume allowed and even encouraged TOC's and abstracts. Mirabile dictu.

Here's the abstract for "Beyond Experience: Getting Retributive Justice Right," the final version of which is now on SSRN.

How central should hedonic adaptation be to the establishment of sentencing policy? 

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release experiences as part of the suffering the state imposes as punishment. 

In subsequent articles, we challenged BBM’s arguments (principally from the perspective of retributive justice) -- see below for SSRN links. The fundamental issue between BBM and us is whether "punishment" should be defined, measured, and justified according to the subjective negative experiences of those who are punished, an approach we refer to as "subjectivism," or whether the more compelling approach is to define and justify punishment, more or less, in objective terms such that the amount need not vary based on experiences of offenders alone. 

In their responsive essay, "Retribution and the Experience of Punishment," BBM responded to our challenges. This essay of ours now assesses the impact of their responses, again from the perspective of retributive justice. We remain unpersuaded by their conceptual and normative responses. We also use this essay to explain further the wrong turns associated with BBM's decision to endorse subjectivist concerns as the principal measure and justification for the infliction of retributive punishment. 

Markel and Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Punishment, http://papers.ssrn.com/abstract=1587886 

Gray, Punishment as Suffering, http://ssrn.com/abstract=1573600 

BBM, Retribution and the Experience of Punishment, http://ssrn.com/abstract=1692921