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Thursday, April 11, 2013

Partial Credit for Punishment Look-Alikes and Less-Alikes

People detained before trial usually receive credit toward their sentences if they are convicted. Yesterday, I argued that we are inclined to give credit for time spent in detention, even though it is technically not punishment, because it is sufficiently like punishment. I call detention a "punishment look-alike" because it is a form of harsh treatment inflicted by the state that closely resembles punishment.

Courts are frequently confronted with questions about what other sorts of treatment prior to conviction warrant credit for time served. Should we give credit for time spent involuntarily confined in a psychiatric institution? in court-ordered drug treatment facilities? under house arrest? Some of these are "punishment less-alikes." House arrest is restrictive and unpleasant but not  as much as involuntary psychiatric confinement is.

It won't surprise you to learn that jurisdictions vary as to which kinds of treatment lead to credit for time served. As a general rule, the more the treatment seems like punishment, the more likely courts are to give credit for time served. This raises the following question: Why do we have to put each kind of treatment into a category of credit or no credit? Wouldn't it make more sense to give partial credit for certain forms of treatment?

It would surely be difficult for judges to determine the amount of credit that should be granted for any particular pretrial restriction. But as I note in this paper, surely legislatures could do so. It would be difficult to attach a precise number to each form of restriction but anything less than equal credit and more than zero credit will more accurately capture the goals of the criminal justice system.

Posted by Adam Kolber on April 11, 2013 at 12:52 PM | Permalink


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Not only do we owe compensation for pre-sentencing detention, we owe compensation to all those who undergo special searching, strip-searching and detention by the TSA. Anytime an innocent person undergoes special treatment in the name of protecting societyl, society owes him compensation.

Posted by: jimbino | Apr 11, 2013 3:35:12 PM

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