« Panel on Academia Post Corona | Main | Thoughts on the Twitter EO (Updated to include final Order) »

Thursday, May 28, 2020

Quarantine and Incarceration

Most of the attention related to incarceration and the pandemic concerns risks to inmates of catching COVID in close prison quarters without proper masks and social distancing. And the increased attention is well warranted. The pandemic, however, also raises interesting questions about the nature of punishment severity. I have used the example of quarantine over the last decade to make a point about the severity of prison. On any plausible view of severity, it should be measured as a change from one's baseline condition to one's imprisoned condition. For example, many scholars think that prison severity is measured as a deprivation of liberty. If so, the severity of prison depends on the amount of liberty one has in his baseline unpunished condition relative to the amount of liberty in his punished condition. This is how we ordinarily measure harm in other contexts. The harm someone caused to your car depends on its state after an accident relative to its baseline state.

So, counterintuitively perhaps, when everyone is quarantined by state law, the severity of incarceration goes down. Why? Because the change in one's liberties from baseline to incarceration are reduced. The same may be true of some non-liberty views of prison severity. If severity is a function of bad subjective experiences, then severity is a change from one's baseline level of happiness to one's punished level of happiness. If quarantine lowers baseline levels of happiness, state quarantine also reduces the severity of incarceration during the period of quarantine because we measure the decline in happiness from a lower baseline. Of course, if one is in a prison with a high risk of getting COVID, one may have lower happiness both in one's baseline condition and one's punished condition. So consider a very self-interested inmate who has immunity to COVID. The person's change in distress caused by imprisonment goes down because he'd be stuck in quarantine even if he were not imprisoned. (I'm ignoring some debate about whether baselines should be measured as pre-punishment levels or as counterfactual levels, but I think the point can be made either way.)

Such results are not entirely counterintuitive. Consider someone who receives a sentence of home confinement during a period of statewide quarantine. Do we really think such a person received a significant punishment if his rules of home confinement essentially match the rules of quarantine? True, there is stigma attached to home confinement that isn't attached to quarantine. But it still seems like a small potatoes punishment during quarantine. And none of this should come as a surprise to those who think about punishment in consequentialist terms. Prison becomes less of a deterrent during quarantine. Deterrence goes down a bit as the difference between non-incarcerative and incarcerative conditions decreases. At the same time, interests in incapacitating dangerous people may stay relatively constant (though this may change based on how much danger we think people would pose under conditions of quarantine).

But recognizing punishment severity as a change in conditions fits less well with retributivist views. For example, if a defendant were sentenced with an expectation that quarantine will continue and then it is unexpectedly eliminated after sentencing, the defendant will now receive a sentence considerably more severe than that which the judge intended. Yet I doubt most retributivists would care about the risk of overpunishment. Ditto for the reverse case. If a person is sentenced to prison and, while there, a quarantine is unexpectedly imposed on the civilian population, few would think that the (self-interested, immune) prisoner should now spend longer in prison to get what he deserved. I think this is because most people have a duration fetish.  For the most part, they think about prison severity in terms of the passage of time and pay relatively little heed to the severity of prison conditions or, more accurately, the severity of the change of conditions from pre- to post-punishment conditions.

Posted by Adam Kolber on May 28, 2020 at 01:27 PM in Adam Kolber | Permalink


And by the way, worth to read, about that legal saga of Ohio prisoners, I quote the essential in this regard:

"The inmates argued that the conditions at FCI-Elkton put them at high risk of contracting the virus since social distancing is virtually impossible at the facility and the measures taken by the prison officials were inadequate to reduce the risk....."

As such, very interesting argument raised:

"They argued that the conditions at the prison, therefore, were a violation of their Eighth Amendment right to be free from cruel and unusual punishment"

Here, and links therein:


Posted by: El roam | May 28, 2020 4:24:42 PM

Interesting. Worth to note, that the sixth amendment, guarantees speedy trial. So, if a person, is stuck, in pretrial detainment, then, it was up to the state, to provide swift as possible proceedings. As such, the time served in pretrial detainment, must be taken to account, because, morally, and effectively, it was the effective responsibility of the state, not his.

Subjectivity(in severity of punishment) is more than bit problematic. Why is it? First, equality. All are equal in the eyes of the law. Second, the state can't engage, in psychological evaluation or, psychological profiling. It is too complicated, not reliable, and humiliating. Every profiling humiliates, surly, when followed by longer or shorter prison term to serve. Although, it does happen in reality. But, typically, when someone has prior convictions, he may get more severe punishment, due to the idea(among others) that jail time, doesn't really deter him. But, this is not really based, on personal psychological evaluation, but, "cold figures".

Not to forget, many times we confuse "freedom" and "liberty". A person can be free (physical aspects) but, psychologically, he is not free. His mind or his soul, are not well balanced, so, even under physical freedom, he may experience, mental agitations, like feelings of guilt, that may consume him wherever he would reside. On the other hand, a person, can reside behind bars, but, psychologically, he is well balanced, and strong. So, subjectivity of such, can become very illusive.

I am falling short here, yet, not to forget:

Serving time, meant also for rehabilitation. So, one person, would become, better and productive to society. If only harsh time would be the issue, the result would be, accumulative troubles to society, as many argue, and more and more recently, concerning the US and its policy of incarceration.

Here, titled:

Rehabilitate or punish?


And here:

" Department of Justice Announces Enhancements to the Risk Assessment System and Updates on First Step Act Implementation"



Posted by: El roam | May 28, 2020 4:08:08 PM

Thanks, Donald! The point of the post was to speak to the nature of punishment severity. So that's why I made the somewhat unrealistic assumptions about an inmate who is self-interested and immune (and we might add, he and everyone else knows he is immune). It shows how, perhaps surprisingly, the severity of a sentence in prison can be changed by things happening entirely outside of the prison.

In terms of deterrence, I agree that simplistic models may get things wrong in the real world. There are lots of things that change during a pandemic, and human behavior can be more complicated than simplistic models reveal. Thanks for your contribution!

Posted by: Adam Kolber | May 28, 2020 3:56:09 PM

This (the decreased deterrence of prison during a pandemic) may be broadly, theoretically true. But I suspect that speaking with a few people who have been incarcerated would dissuade you that this is correct from a practical standpoint.

Also, even from a theoretical standpoint, your relative severity argument may be missing two factors: the change in the conditions of prison confinement during a pandemic, and the increase in health risks from being incarcerated during a pandemic.

As to conditions: there are both measurable and non-measurable increased restraints on liberty that come with being incarcerated during a pandemic (or, at least, during this pandemic). I'll use Ohio as an example, as that's the system with which I'm most familiar. Family visits have been halted in an effort to prevent the virus from entering the prison system. Before the virus is rampant in a prison, inmates who experience symptoms are placed in isolation--and the only way to do that in the prison setting is solitary confinement, which is normally used as punishment. Meals were reduced to two per day in an effort to limit inmate co-mingling. From a non-measurable standpoint, we've heard numerous reports of corrections officers being particularly on edge (and taking it out on inmates) out of fear of becoming ill themselves.

And while you mention the health concern in your introductory paragraph, it doesn't seem to factor into your relative-severity argument. In Ohio, an inmate is 10 times likelier to die of COVID than a member of the general population. (And that's not 10 times likelier to die if the disease is contracted, that's 10 times likelier overall.) My clients are uniformly terrified of dying from COVID. So it would seem that the deterrent value of prison would have to factor in the non-negligible health risks attendant to being incarcerated during a pandemic.

Just my very clinical thoughts about a doctrinal approach to punishment.

Posted by: Donald Caster | May 28, 2020 3:40:54 PM

Post a comment