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Wednesday, April 10, 2013

The Mystery of Credit for Time Served

The Supreme Court has held that pretrial detention does not constitute punishment. The received wisdom among most punishment theorists (and courts take a similar position) is that for some treatment to constitute punishment, it needs to be intended as such. Since detainees are presumed innocent; we don't intend for them to be punished. Nevertheless, if tried and convicted, prisoners almost always receive credit toward their sentences for time served in detention. Why do we reduce prisoners' punishment by time spent unpunished? I call this the mystery of credit for time served.

Courts and theorists aside, most people will have no problem resolving the mystery: we give credit for time spent in detention because it's close enough to punishment. It's harsh treatment inflicted by the state, and most people are inclined to include that in the mix when deciding if a person received appropriate punishment. So if a person spends a year in detention and is sentenced only to time served, most laypeople think it's at least possible the person received appropriate punishment, yet theorists are left with the unusual view that the person received no punishment at all.

Why is all of this important? Here is one of several reasons: Many have bemoaned the collateral consequences associated with imprisonment, like the loss of voting rights or the difficulty of finding a job. Some courts and punishment theorists reply: Ah, but these detriments are not punishment. Answer: True, they are not punishment under the traditional definition. But they require a justification, just as punishment does. If you ignore the magnitude of harms foreseeably caused by the state, then you may not be able to justify those harms no matter whether you call them punishment or not.

Here's the key connection: If knowingly-imposed harsh treatment at the hands of the state before conviction (i.e., detention) reduces how much punishment is appropriate, then surely knowingly-imposed harsh treatment at the hands of the state after one's sentence ends should also be relevant when thinking about how much punishment is appropriate. Collateral consequences (and other foreseen though unintended harms of prison) cannot be dismissed under a technical definition of what constitutes punishment. For more on the mystery of credit for time served, see here.

Posted by Adam Kolber on April 10, 2013 at 09:43 AM | Permalink


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Thanks! I agree that collateral consequences seem even more like punishment than pretrial detention. In the paper, though, I say why I don't think retroactive recharacterization is the way to make sense of credit for time served.

Compensation for the acquitted (or otherwise non-guilty) could be the way to go. But in order to avoid some of what I call the absurd outcomes I discuss in the paper, we'd also have to compensate people for collateral consequences! And that can get very messy and unappealing to most people, especially when you see how broadly I construe collateral consequences.

Posted by: Adam Kolber | May 6, 2013 7:52:01 AM

The idea that collateral consequences are not punishment seems even less plausible than the idea that pretrial detention is not punishment when a person was sentenced to time served. (It seems easy enough to say that it retroactively becomes the punishment. In a more just world, people exonerated should probably be compensated for time served. Then that would make the sense of punishment clearer methinks.)

Posted by: ctr | May 5, 2013 9:38:30 PM

It doesn't matter whether or not it's punishment in the legal sense. The state has deprived a person of liberty and, if he's found not guilty, the state owes him compensation for illegal detention.

Posted by: jimbino | Apr 11, 2013 4:03:33 PM

Cool -- thanks for bringing these issues to attention.

Posted by: andy | Apr 11, 2013 2:30:59 PM

Thanks, Andy! As I note in the post, I am indeed discussing two different ways the term "punishment" gets used. If that's all there was to it, you're right that it would hardly be unusual.

A problem arises, however, when we try to determine what constitutes "proportional punishment" (for those who care about such things). I think that most people believe that credit for time served is consistent with proportional punishment because they treat detention as sufficiently like punishment to count toward the total.

In the post, I make a symmetry argument: if state-inflicted harsh treatment before conviction counts toward the total for proportionality purposes, then state-inflicted harsh treatment afterwards should too.

The post illustrates why theorists cannot dismiss the argument merely by saying that such harsh treatment is not "punishment." That would be using punishment in the technical sense whereas the conclusion that time spent in detention contributes to proportional punishment requires using "punishment" in what you called the colloquial sense.

Posted by: Adam Kolber | Apr 11, 2013 6:08:32 AM

" most laypeople think it's at least possible the person received appropriate punishment, yet theorists are left with the unusual view that the person received no punishment at all."

Seems like you are using punishment in two different senses here. I think most laypeople would agree that being held pending trial constitutes punishment, in the colloquial sense. And I think most theorists would agree that being held pending trial constitutes punishment, in the colloquial sense. Thus, there's nothing "unusual" about the theorists view.

For purposes of constitutional analysis, theorists understand "punishment" to have a special meaning, not a colloquial one, but I don't think there's anything unusual about that. To consider another example, if a tax statute says that "the term 'fruit' includes a dog," and I happen to think that for purposes of that statute, the term fruit in fact includes a dog, I don't think I have done anything "unusual."

More generally, comparing how laypeople think about a general term in a general context to how theorists think about a legal term in a specific context is like comparing apples and oranges.

Posted by: andy | Apr 11, 2013 2:50:03 AM

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