Tuesday, June 02, 2020

Kolber Signs Off

It was great guest blogging at Prawfs during the month of May. My thanks to Howard and his Prawfs colleagues, to all those who participated in the Legal Discontinuities Online Symposium, and to viewers and commentators like you. Here's a link to my posts during this stint and a link to the posts from the symposium.

Lastly, here's Cal Newport writing in favor of blog resurgence (but maybe I'll tweet here occasionally).

Posted by Adam Kolber on June 2, 2020 at 11:13 AM in Adam Kolber | Permalink | Comments (2)

Friday, May 29, 2020

Why Retributivism Has a Time Frame Problem

Many have the intuition that those who do good deserve good things, and those who do bad deserve bad things. Retributivists take this intuition quite seriously. They argue that criminal offenders should suffer or be punished in proportion to their moral desert. It is offenders’ moral desert, they believe, that justifies the harsh treatment offenders receive. In the more pure forms of retributivism that I focus on here, moral desert is all that retributivists need to examine to assign amounts of punishment to particular offenders.

It turns out to be quite difficult, however, to decide exactly what counts in assessments of moral desert for criminal justice purposes. Even if we assume desert depends on actions (as opposed to, say, character or virtue), retributivists must decide whether to examine offenders’ desert for crimes and other misdeeds across their entire lives (the “whole life” approach) or only for what are typically recent crimes under consideration at a current sentencing proceeding (the “current crime” approach).

Neither view is acceptable. The whole life view examines all of offenders’ good and bad deeds and all of the good and bad things that have happened to them in order to impose penal treatment proportionate to moral desert. Unfortunately, we have limited evidence of offenders’ prior conduct and of the good and bad things that have happened to them since birth. Moreover, punishing those who have suffered great misfortune risks augmenting the mismatch between their well-being and what they deserve. In some cases, the whole life approach could lead to unworkable “moral madness” (Ezorsky 1972, p. xxv) in which a person has suffered so much that he could knowingly break the law and still be immune to punishment.

Some retributivists might cling to the whole life approach but view it as an idealization. They might say recent crimes are proxies for whole life desert given available evidence. But retributivists widely endorse a firm prohibition on purposely, knowingly, or recklessly overpunishing (Alexander and Ferzan 2009, p. 102, n. 33). In any world we can plausibly imagine, using recent crimes as a proxy for overall moral desert would make the risk of overpunishment enormous and could be deemed knowing overpunishment whenever a judge deliberately ignores evidence from an offender’s past that would mitigate.

Our actual sentencing practices, to the extent they contain retributivist features, largely reflect a different approach. Most judges purport to sentence offenders only for crimes for which they have been recently convicted (the current crime approach). To the extent judges consider offenders’ broader history at all, they typically believe that it informs the seriousness of the crimes currently being sentenced. Outside of prior criminal history, an offender’s broader history has limited effect on sentencing. Sentencing practices vary substantially, however, often in nontransparent ways, and likely reflect both the whole life and current crime approaches to varying degrees.

Even if the current crime view predominates among judges in the United States, retributivists cannot simply rely on what a legal system actually does. They must show that whatever practices they advocate are morally justified. And if desert matters so much to retributivists that it can justify punishment, it’s not obvious why we generally fail to examine desert holistically. Looking narrowly at recent crimes risks ignoring offenders’ positive desert and prior suffering and might cause offenders to get even less of what they deserve than if the state hadn’t intervened at all.

Retributivists must choose a time frame in which to analyze desert, but the choice puts them in an unenviable position. The whole life view is impractical to the point of absurdity, while the current crime view is theoretically unsound. Hence the choice of a pertinent time frame in which to evaluate desert presents a serious challenge to retributivist justifications of punishment (and, implicitly, a challenge to many hybrid theories of punishment that have substantial retributivist components), particularly when such justifications are meant to apply to real-world punishments such as incarceration. Retributivists have often ignored the choice, perhaps because it is so difficult to make. But to uphold the retributivist justification, they must select a time frame and explain why the choice is neither theoretically unsound nor hopelessly impractical.

This post is adapted from the introduction to "The Time Frame Challenge to Retributivism," which appears in the recently-published OUP collection Of One-eyed and Toothless Miscreants: Making the Punishment Fit the Crime? (Michael Tonry ed., 2019).

Posted by Adam Kolber on May 29, 2020 at 02:29 AM in Adam Kolber | Permalink | Comments (7)

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 | Comments (4)

Wednesday, May 27, 2020

Scholarship vs. Judging/Lawyering

Part of the reason legal scholars fail to clearly distinguish descriptive and normative claims is that they focus more on the “legal” part of their title than the “scholar” part. Almost all legal scholars trained as lawyers rather than scholars, and they fall back on approaches better suited to the profession they trained for. Nevertheless, scholars must recognize the descriptive-normative distin