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Tuesday, November 10, 2015

Broad and Narrow Punishment

H.L.A. Hart famously claimed that a central feature of punishment is that it is "intentionally administered” to an “offender for his offence.” Many punishment theorists share Hart's view that punishment essentially concerns an intentional infliction. I will emphasize, however, how extraordinarily narrow this view of punishment is:

(1) Credit for time served inconsistent with the narrow view: When people are detained before trial, we typically don't say they are being punished. After all, they haven't been convicted of any crime. So, consistent with Hart so far, we are not intentionally administering painful or unpleasant consequences on pretrial detainees for an offense. However, when pretrial detainees are subsequently convicted, they almost always receive credit against their punishments for each day they were detained. We reduce the punishment they must serve by the supposed non-punishment of detention. We do the reduction, I believe, because we think the harms of detention (even though not intended as punishment) are essentially the same as punishment, such that we reduce punishment day-for-day with detention. Hence, contra Hart, amounts of punishment depend on more than just those inflictions that are intentionally administered as punishment.  (See here for more.)

 (2) Our intuitions of punishment severity extend beyond the narrow view: Suppose Judge A in State A sentences a defendant to four years in prison for a particular crime. The judge, and if you'd like, the citizens and legislators in his state have a very vivid idea of what goes on in prison and it is the purpose of the judge (and the citizens and legislators) that the defendant undergo many hardships in prison (worse food; separation from family; loss of sex life, etc.). By contrast, Judge B in State B sentences a different defendant to four years in prison for a crime of equal seriousness. Both defendants, let us assume, are equally worthy of blame. In State B, however, the judge and the citizens and legislators have only vague notions of prison life. It's their purpose that B be deprived of liberty for four years, but they don't think about the side effects, such as the food being bad or the harms of separating from one's relatives. We could say that the judge et al. know about these things, but it's not their purpose that the defendant undergo these hardships.

So A and B are otherwise alike in all pertinent respects; they are incarcerated in identical conditions for four years and they experience confinement in exactly the same way. Wouldn't we say that their punishment severity is the same? That is, even though A and B differ dramatically in the amount of "narrow" punishment they receive, when asked whether their punishment severity is the same, we're inclined to say yes. That is, we are inclined to focus on punishment in the broad sense. We probably don't care precisely which hardships of prison are purposeful and which are merely foreseen when assessing amounts of punishment. (See here for more.)

Why does all of this matter? Those punishment theorists who only purport to justify intentional inflictions (see p. 24 here) cannot justify real-world punishments (or must offer a non-punishment, shadow theory to justify these other aspects of punishment) for all punishments include unintended side effects. I'll also use the distinction between broad and narrow punishment in my next post to reply to Alec Walen's comments on my work in his entry on retributivism in the Stanford Encyclopedia of Philosophy .

Posted by Adam Kolber on November 10, 2015 at 04:47 AM in Criminal Law, Legal Theory | Permalink


Thanks, Adam. My concern is mostly that your term "punishment severity" is subject to different interpretations, and I'm worried that some amount of analytical work may be being done by relying too heavily on the ambiguity of which interpretation is meant. What is relevant for one meaning of "punishment severity" may not be relevant for another meaning of the term, and not everyone who uses or thinks about the term may have the same meaning in mind.

Posted by: Orin Kerr | Nov 11, 2015 12:22:55 PM

Let's say state X treats a risk of sexual assault in prison as punishment and deliberately takes steps to encourage it. State Y treat a risk of sexual assault as a bad side effect of punishment and takes steps to discourage it. Nevertheless, the risk of sexual assault in some prison facility in X is exactly the same as the risk in Y.

Most will, indeed, say that the criminal justice professionals in X act more wrongfully than those in Y because most of us don't think of sexual assault (or a risk of the same) as an appropriate punishment. But it's not obvious to me that some victim of sexual assault in prison in X is punished more severely overall than some victim of sexual assault in prison in Y, even though the assault in X is encouraged in a way that it is not in Y (assuming, of course, that these victims have the same sentences and are otherwise alike in pertinent respects).

We could also imagine a third state Z. Z is like Y in that the risk of sexual assault is not encouraged but is a mere side effect. In Z, however, the risk of sexual assault is substantially higher than in X and Y. I think a rational prisoner would prefer to serve his term in X than in Z, even though one might say X involves more punishment in the narrow sense because it includes an intentionally imposed "sexual assault lottery" as punishment. I'm inclined to say that knowingly forcing someone's confinement in a place with a high risk of sexual assault contributes to punishment severity in much the same way that purposely confining someone to expose him to a higher risk of sexual assault does. Thanks again!

Posted by: Adam Kolber | Nov 11, 2015 10:49:14 AM

Thanks, Adam. You write: "As to that, I think we do not much care which intentions were inflicted on purpose." I disagree. I think whether we care depends on what specific question we're asking. On one hand, if we're asking about the experience of the defendant, then we don't care, in part because the defendant normally can't know.

If we're asking about whether a state actor acted appropriately, on the other hand, then I think we do very much care about this. For example, imagine a sentencing judge gave a speech at sentencing in which he said that he hoped that the defendant would be sexually assaulted in prison because he deserved it as punishment for his crime. The public would be properly outraged at that; it would likely become a national news story. On the other hand, imagine a judge sentences a defendant to a prison term, knowing the risk of assault but not hoping it will happen. That would be no story at all.

Posted by: Orin Kerr | Nov 10, 2015 9:32:48 PM

Thanks, Orin! I think your questions may cut to heart of the issue. Let me focus on (2) first: Hart's description might work for questions of the sort, "Is X punishment?" But there's a separate question that interests us, namely "*How much* has a person been punished?" As to that, I think we do not much care which intentions were inflicted on purpose. So I think we take the sentence in State A and State B to be essentially the same not just because we don't know which kind of state we're in. Even if we got answers to questions about which inflictions were intentional, I think we'd still say that A and B received the same or largely the same punishment. We don't care much whether the inflictions were intentional or merely foreseen/foreseeable. (I'm not trying to stipulate a special meaning of "punishment severity." I'm trying to show that our intuitions about our ordinary lay concept of punishment severity don't match up well with a very narrow conception of punishment.)

As for (1), I'm not sure if this is responsive: One issue is how much punishment a person warrants. Let's describe that in warranted-punishment units. Another issue is how we take real-world facts about, say, sentence duration, size of cells, etc. and convert that into actual-punishment units. As described here, a person wants the actual-punishment units a person receives to match his warranted-punishment units. I'm suggesting that these issues of intentional infliction are meant to speak to actual-punishment units rather than warranted-punishment units. So issues of say, how much punishment a person should receive if he accepted responsibility and cooperated with the government would speak to warranted-punishment units. But facts about crimes don't obviously figure into measurements of actual-punishment units which are about things like how much we deprived someone of liberty or how much we made them suffer. Apologies, though, if I missed your point here.

Posted by: Adam Kolber | Nov 10, 2015 6:22:15 PM

Adam, can you clarify the point of disagreement for me?

On (1), you write: "Hence, contra Hart, amounts of punishment depend on more than just those inflictions that are intentionally administered as punishment." Does Hart really argue that the amounts of punishment that a sentencing court imposes -- that is, the factors that should lead to greater or lesser punishment -- depend wholly on "those inflictions that are intentionally administered as punishment"? Sentences are routinely influenced by factors that are themselves not forms of intentionally administered punishment, and I don't see an obvious tension between that and Hart's definition of punishment.

On (2), you ask us to evaluate the "punishment severity" in the two cases. As far as I can tell, though, you're not telling us if the concept of "punishment severity" is a concept that is supposed to describe the experience of the thing that was punishment (from the defendant's perspective) or the act of imposing the punishment. If the former, then it's not surprising that people might take that term to be the same in State A or State B, but for reasons other than the nature of punishment. It seems to me that as a practical matter, no one sentenced would know the difference or be able to tell if they are in State A or State B, so it seems hard to base the difference on an unknown.

Posted by: Orin Kerr | Nov 10, 2015 11:43:48 AM

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