[Adam Kolber, guest-blogging, February 14, 2008 at 6:35am] Trackbacks
The Subjective Experience of Punishment:

Suppose that Sensitive and Insensitive commit the same crime, under the same circumstances. They are both convicted and sentenced to spend four years in identical prison facilities. In fact, their lives are alike in most respects, except that Sensitive is tormented by prison life and lives in a constant state of fear and distress, while Insensitive, living under the same conditions, finds prison life merely difficult and unpleasant. Though Sensitive and Insensitive have sentences that are identical in name—four years of incarceration—and the circumstances surrounding their punishments appear identical to a casual observer, their punishment experiences are quite different in severity.

Many theorists provide a retributive justification for punishment. They believe that offenders deserve to suffer for their crimes. They typically also believe that an offender's suffering should be proportional to the seriousness of his offense. For example, murderers should be punished more than thieves, who should be punished more than jaywalkers. Sensitive and Insensitive, however, have committed crimes of equal seriousness, and, on this view, they should suffer the same amount. In this example, they don't. Most retributivists seem committed to the perhaps surprising outcome that we ought to take account of the differences in the punishment experiences of people like Sensitive and Insensitive.

The response that Sensitive and Insensitive should receive equal punishments for equal crimes is not itself a challenge to the calibration view. At issue is, "What does it mean to have an equal punishment?" My claim here is that the only plausible way to understand retributivist suffering is in terms of experiential suffering; so that's what would need to be equalized (if you think punishments should be equal for identical crimes).

Many consequentialist punishment theorists believe that we should punish in order to deter crime, incapacitate offenders, and rehabilitate criminals. They do not seek to maximize punishment because punishment itself has negative consequences. Among those negative consequences, many consequentialists would quite directly incorporate offenders' negative subjective experiences into their assessments of the costs of punishment. So a cost-benefit analysis of punishing Sensitive will likely look different than a cost-benefit analysis of punishing Insensitive.

More generally, consequentialists cannot optimize their deterrence strategies without taking account of different people's anticipated subjective experiences. A group of people who are very sensitive to the risk of suffering in prison are likely to be optimally deterred at a different level than people who are very insensitive to the risk of suffering in prison. A world with calibrated sentences makes it easier to optimally deter a larger number of people. Therefore, absent concerns about cost and administrability, consequentialists are also committed to the view that we ought to consider the differences in the punishment experiences of people like Sensitive and Insensitive.

But what about the very important concerns about cost and administrability? And how does this topic relate to neuroscience? Stay tuned . . . (The text above is adapted from this draft article. Law review editors interested in the piece are invited to contact me.)

gasman (mail):
You can't measure the subjective suffering, and the prisoner would have an obvious gain to inflate their self reported degree of suffering.
When a primary outcome measure cannot be assessed we utilize surrogate measures. In a free society with broad individual liberty we utilize time spent without those liberties as a rough measure. How the prisoner deals with their personal reaction to their new situaion is their own problem.
2.14.2008 7:31am
Stephen Goldstein (mail):
Why am I reminded of Joel Chandler Harris' Brer Rabbit . . . .

"Hang me just as high as you please, Brer Fox, says Brer Rabbit, says he, "but for the Lord's sake, don't fling me in that briar patch," says he.
2.14.2008 7:52am
Mike Keenan:
This article reads like something from The Onion.

I apologize that this is not a substantive criticism, but it is what I was thinking...

Is deterrence really the best objective function to minimize -- at the expense of a basic sense of justice?

[AK: Mike, you are correct--this is not a substantive criticism. The post describes what I believe follows from prevailing theories of punishment. I agree that what follows from our theories may seem rather strange and surprising. So much the worse for our theories, perhaps. But if one wants a good justification of punishment, one needs to address the odd-seeming implications of those theories. (Also, I make no claims about the relative merits of deterrence versus retribution, which I believe is what your question is addressing.)]
2.14.2008 7:54am
Prufrock765 (mail):
I suppose this falls under the rubric of "cost and administrability", and so may be premature: but, I think that an important part of any coercive regime, especially in the modern West, is who assess and imposes the punishment. We are, many of us, wary of giving any more discretion than absolutely necessary to the punishing agent.
Beyond that, though, I think that judges, as a matter of course, do assess to a degree the suitability of the punishment to the individual offender. The low regard in which most federal trial judges hold the Sentencing Guidelines is some evidence of that proposition.
2.14.2008 7:54am
Richard Aubrey (mail):
Is there some correlation between the nature of the crime and the sensitivity or lack in the criminal?
Are armed robbers likely to be as sensitive as, say, burglars?
It would seem intuitively likely that those who have no problem inflicting pain and harm on others are lacking in sensitivity. Of course, self-sensitivity is different from empathy and sympathy and compassion. But is there a chance of a positive correlation: Bad-ass criminals are tougher even internally than non bad-ass criminals.
2.14.2008 8:02am
pgepps (www):
Except as a measure of the necessary imprecision of human justice, whose increased precision only comes at the price of totalitarianism, I fail to see why anyone should be so committed to whatever theory as to make this sort of thing relevant. Sounds to me like someone's sniffing Huxley fumes, still.

Now, if you were using this to argue that internal inconsistencies in retribution and consequential theories of punishment suggest the superiority of a restitution model, with incarceration strictly an enforcement measure, then I'd be listening.
2.14.2008 8:04am
Temp Guest (mail):
Inteernalized time-horizons and discounting rates should be addressed as part of this issue. Research suggests that career criminals have very short time horizons anbd very high discount rates. For persons such as these even a relatively short sentence of say five years might as well be a life term. On the other hand, for such persons a deferred sentence is equivalent to no sentence at all. One other point worth making is that short time horizons and high internalized discounting rates correlate with career criminality and career criminals often find the prison environment not horribly unpleasant (Joan Peterson has written on this topic). Herrstein and Wilson have written on the relations between interenal time horizons and discounting rates and criminality. Mark Kleiman has also considered these issues and the relation of time horizon and discount rate to the effectiveness of punishmment.
2.14.2008 8:28am
Soronel Haetir (mail):
I have been giving a lot of thought to punishment reform lately and have an entirely new model to propose. I realize this model would not withstand court review under current cruel and unusual punishment doctrine, and have been unable to come up with any sort of amendment language that would suffice while not remove limits entirely.

My proposal is as follows:

1) After conviction, either through plea or verdict a new pool akin to the jury is picked. Its size is determined by the severity of the crime, more severe crimes getting a smaller pool. Ideally this pool is chosen from regions far from both the crime and where any trial was held.

2) Each member of this pool is approached in turn, without being told either the pool size or their place within it. They are presented with some facts about the convict including prior convictions. I have not yet narrowed this list fully, but belive some information needs to be withheld.

3) The pool member makes a personal decision regarding the prospects of the convict being rehabilitated, if the pool member belives that the convict can be then the convict is placed in that person's care in some form of legal guardianship. There is a stipend associated with accepting, calculated to make the convict's presence in the home as neutral as possible.

4) If all pool members say no then the convict enters prison to begin the normal appeals process, including appeals of any prior convictions for which a pool member agreed to rehabilitation. Upon failing appeals the convict is executed for being rejected by society.

5) Any convict that completes the guardianship is restored to full civil status, with the fact of conviction being unavailable to potential and actual employers. The only time the conviction can be used is during step 3 and possibly at trial.

This system is only for felonies. misdemeanors remain punishable by detention for some period of time.

I thought of this system after seeing data indicating that 80%+ of convicts will eventually be released and that nearly 75% will reoffend at some point. My intention is to maximize both punishment and forgiveness.

Just some ideas.
2.14.2008 8:53am
I'd guess that our experiences with group sensitivity, which the political process does address pretty well, suggests that individual sensitivity as a penal consideration would be fraught with unintended consequences.

For instance, crack cocaine users are less deterred by penal risk than powder cocaine users, so legislatures crank up the penalties. This ends up raising racial and class issues. I can only imagine the backlash when Paris Hilton and Marth Stewart score high on the penal sensitivity measure, while the Jena 6 score low.
2.14.2008 9:17am
Pyrrhus (mail) (www):
Consider that "sensitivity", as it is commonly understood, is often a biological method of escaping some cost, rather than an actual cost itself.

You break a vase at your friend's house and a series of emotions occur. You signal distress, sadness, and embarrassment. These things signal the accidental nature of the event and lessen the chance of a cost through lost friendship and, if perhaps the right display of contrition occurs, lessen your likelihood of having to replace the vase.

Now you may understand "sensitivity" in a different way, but let me suggest that there are shades of the above in your post. Consider the "Sensitive [man, who] is tormented by prison life and lives in a constant state of fear and distress." Is his display of fear and distress an actual "cost"? Or is it a instinctive display of emotion aimed at convincing you to not make him pay a true cost (prison time, loss of opportunities).
2.14.2008 9:27am
DiverDan (mail):
There is a third justification for incarceration that you have ignored - the justification than incarceration (and the death penalty, for that matter) helps to protect society by removing from society those who disrupt society by breaking the rules. By incarcerating disruptive individuals who are willing to rob, steal, assault, rape, murder, etc., law abiding citizens, society become incrementally more ordered and safer. Indeed, that is the only justification which supports things like the "three strikes" and "career criminal" laws; otherwise, why should a convicted criminal suffer such a disproportionate sentence for his third assault, as opposed to his first or second? Under that justification, we should be completely indifferent to differing degrees of suffering by Mr. Sensitive and Mr. Insensitive (which, as a practical matter, is impossible to accurately measure, especially before either man has set foot in a prison, when their first-offense sentence is determined); after all, the level of disruption to society caused by each was equal, so the amount of protection demanded by society ought to be equal. Now, of course, if we want to maximize protection, we could just permanently lock up (or otherwise exile from society, see Heilein's short story "Coventry") every violator, but that would ignore any concept of proportionality and the possibility of rehabilitation. The "three strikes" and "career criminal" laws are based upon the assumption that once attempts at rehabilitation have failed a certain number of times, the probability of future disruptions from these individuals is simply too great, and the best way to protect society is to permanently remove them from society.
2.14.2008 9:56am
DiverDan (mail):
Sorry - "Coventry" by Heinlein.
2.14.2008 9:59am
markm (mail):
Indeed, that is the only justification which supports things like the "three strikes" and "career criminal" laws; otherwise, why should a convicted criminal suffer such a disproportionate sentence for his third assault, as opposed to his first or second?

I would conclude that if the first two prison sentences didn't deter him, he's "Mr. Insensitive".
2.14.2008 10:19am
Temp Guest (mail):
Correction: Not Joan Peterson, rather Joan Petersilia who wrote on this subject while at RAND.
2.14.2008 10:25am
markm (mail):
IIRC, in Heinlein's "Coventry", exile to Coventry isn't a penalty per se, but rather it's an alternative the criminal could choose to rehabilitation - it being implied that something like brainwashing is part of rehabilitation for the more serious cases.
2.14.2008 10:26am
What about big vs. small? Smaller, weaker people are likely to suffer more in a prison environment than bigger, more muscular people. Chances are that this difference CAN be measured. So, should the 98-pound weakling who kills with poison serve a shorter sentence than the enormous body-builder who batters his victim to death?
2.14.2008 10:28am
Soronel Haetir (mail):
DiverDan touches on the ideas behind my proposal, my main problem with this theory under current practice is that little or no real effort is placed on rehabilitative efforts for the first time offender. My other problem is the huge after incarceration penalties, which to my mind encourage recidivism.
2.14.2008 10:32am
Redlands (mail):
Seems the best one could hope for is some form of presentencing indication. Probation report, prior record, something that might be valuable in forecasting the subject's reaction to confinement. Then, sentence accordingly. In the real world, to the extent that applies to my state of California, it takes a dedicated effort to get yourself sentenced to state prison.
2.14.2008 10:39am

It strikes me that, if the goal is to equalize suffering, rather that try to calibrate the length of sentence a better alternative would be to calibrate the severity of the incarceration location. Obviously we already do this to a degree but it wouldn't be a great stretch to construct a more sophisiticated system.
2.14.2008 10:57am
Adam J:
I see aproblem with tailoring sentences based on the prisoner's subjective experience. I think any attempt to have variance in sentences do to subjective experience will lead to arbitrary results. Indeed, we've already shifted away from indeterminate sentencing because society feels that giving decision makers discretion to consider complex &intangible factors can lead to arbitrary results. How will the decision maker determine whether or not the person is sensitive or insensitive... how sensitive are they? how should their sensitivity be reflected in the sentence? I just can't see how a decision maker can approach these questions on a practical level and also have consistent results (e.g. people of equal sensitivity actually receive equal punishments, people of less sensitivity receive appropriately harsher sentences).
2.14.2008 11:04am
MDJD2B (mail):
Since it is difficult to measure the offender's subjective response, we must fall back on objective theories.

I believe there are at least three that are applicable.

1. Quarantine-- speapating an offender from society so he cannot injure others. This is statistically predictble from the natrue of the crime and various demographic factors, including prior conviction record.

2. General deterrence-- the use of punishment to deter others from committing a crime

3. Expressive theory of punishment-- that punishment is neither intended as retribution nor for utilitarian reasons, but to make a statement on behalf of society regarding the seriousness of the act by punishing the offender.

We don't ever need to get to the effect of punishment on the offender if we base our theory of punishment on factors that are not affected by this parameter.
2.14.2008 11:18am
Richard Aubrey (mail):
Good points, considering the risk of arbitrary and completely foolish results involved in trying to quantify sensitivity.
IIRC, Heinlein's Coventry, the experience in exile to Coventry (I wondered what was so bad about Coventry when I found out Dick Prescott went there and didn't like it)was also brainwashing, but not advertised as such.
2.14.2008 11:37am
Houston Lawyer:
My response would be to find those who were insensitive and inflict tougher punishment on them. The only way I can think of doing this would be to assign some sadist to each prison to ensure maximum pain on all involved. I'm not advocating this approach, but it seems at least as rational as being soft on the weenies.
2.14.2008 11:58am
Seems like there was an interesting application of these principles when poor Paris Hilton was sent to jail...To her, that punishment was so extreme that it caused a complete breakdown..Prison officials seemed to agree with her and sent her home...The judge disagreed and sent her back.

I think I agreed with the judge.
2.14.2008 12:05pm
Temp Guest (mail):
Blue: An interesting idea. Part of the intake process for inmates is classification. After this different types of inmates are assigned to different facilities, mostly based on escape risk and the possibility they will harm or be harmed by other inmates. Most of the serious unpleasantness of imprisonment is created by other prisoners: It is extremely unpleasant to have as close neighbors people who have demonstrated an inability to "play well with others". Anytime I've asked inmates about what they dislike about imprisonment they always mention the fear of other inmates. Sentenced inmates often prefer a longer sentence in prison to a shorter one in jail, because the high turnover in jail makes it more difficult to form protective alliances and figure which inmates pose the greastest threats. Maybe one one way to implement your suggestion would be to assign inmates so that the nastiest are together and punish each other the worst and so on down the line until the leasst harmful are housed together and likely to behave reasonably well to one another.
2.14.2008 12:12pm
DrGrishka (mail):
It seems to me that the difference in experiencing the punishment is really only relevant to punishment for non-violent crimes (such as white collar offenses).

In the context of violent crimes, the goal is not just retribution, but incapacitation and societal protection. The length of the incapacitation and needed protection is judged by the severity of the crime (which in turn indicates how antisocial the criminal is, i.e., how much of societal contract is he willing to break). Thus, although criminal S may feel more angst in prison than criminal I, that is not relevant (or at least only partially relevant) when determining the length of isolation.

In the context of white collar crimes, on the other hand, more likely than not incapacitation is not needed. Or to the extent that it is needed, it can be accomplished by means other than prison (e.g., prohibiting the person from ever dealing with securities again). In those cases, retribution takes on primary role. So, I think the question and the solution ought to be appropriately narrowed.
2.14.2008 12:48pm
Adam J:
DrGrishka- You're forgetting deterance in white collar crime. Deterance is a means of societal protection that is should be quite effective against white collar criminals- who are typically more rational and better weigh the cost/benefit of committing a crime.

Deterance actually calls for quite severe punishment. This is because white collar crime is often hard to detect and frequently escapes punishment. The more lower the probability of being caught, the greater the punishment must be in order for deterance to be effective.
2.14.2008 12:56pm
Mary Katherine Day-Petrano (mail):
The short, and most clear, answer is: Title II of the Americans With Disabilities Act needs to be brought to bear full force in the sentencing context on behalf of Sensitive. And if we are talking about a Federal prison sentence, Section 504 of the Rehabilitiation Act of 1973.

Of course the extremely homogeous non-disabled Federal Judiciary from whom disabled persons are screen out of peer membership by the blatantly discriminatory Federal Judicial Vacancy Applications circulating this Country, would NEVER see the perspective of Sensitive.

So all hope is lost BEFIORe we can even engage in an intelligent discussion of the problem.
2.14.2008 1:02pm
Mary Katherine Day-Petrano (mail):
corr: "BEFIORe" = BEFORE
2.14.2008 1:05pm
Mary Katherine Day-Petrano (mail):
Notably absent from the Volokh, incredibly, is any real coverage of the wheelchair dumping incident in a jail sweeping this Nation and Internationally.

I believe THAT is a real true example of Sensitive.

And it is causing virtual million man disability Internet march on Washington all the way to the steps of our Great Department of Justice Civil rights Division Disability Rights Section

See the more than 20 + separate threads increasing in a todal wave of numbers HERE
2.14.2008 1:10pm
Gil Milbauer (mail) (www):
I understand how our impulse for retribution may have been valuable in the environments in which our brains evolved, but I don't think it makes much sense today to care deeply about the subjective experiences of convicted criminals.

I'm much more of a consequentialist when it comes to punishment, except that I'm also very concerned about violating rights out of proportion to the crimes.

So, theoretically, I guess it would help the effectiveness of deterrence if potential criminals could be confident that the system would accurately determine their sensitivity and inflict enough punishment to make the risks of crime too high. Of course, this should only be done if it didn't require punishments more severe than the crimes warrant.

But, it seems to me that it will be a long time before the system can even inspire confidence that it can determine guilt or innocence accurately, let alone anything more difficult.

So, for now, I'd oppose policies that would try to do this and likely fail and bring about worse consequences.
2.14.2008 1:11pm
Mary Katherine Day-Petrano (mail):
corr: "a todal wave" = tidal wave
2.14.2008 1:12pm
DrGrishka (mail):
Adam-That is a fair point.

However, I wonder whether "deterrence" is subject to the same limitations as retribution. In other words, if we believe that in order to inform people of the consequences of criminal activity we must show them that anyone caught will suffer X amount of unpleasantness (or pain, if you will), does not X vary with the individual? That is to say, S will suffer X pain in a shorter time than I, but he will still suffer the same amount. In that sense, the deterrence rationale does not solve the problem.
2.14.2008 1:26pm
Mary Katherine Day-Petrano (mail):
I have to wonder of the discrimination in sentencing lesson of Gregg v. Georgia, 428 U.S. 153, 188 (1976), was LOST on some people who must have slept thru their crim law/proc classes in law school.

Or maybe SOME people did not sleep thru this imoortant lecture, but are simply barbarians.

"Sensitive" invokes the issue of some 80% of all sentenced inmates being comprised of disabled persons with mental disabilities.

The Florida Supreme Court has very recently published a report about this mental disability crisis involving the use of sentencing to warehouse by incarcerating huge numbers of mentally disabled people who are not getting affordable housing (there is no housing available for a person on Florida's $400/mo. SSI disability allotment), parity health care, or protection from employment discrimination that eliminate their right to hold jobs. Go to the picture of Hon. Chief Justice R. Fred Lewis HERE and click on the report link to read all about the dilemma facing "Sensitive."

In Florida, a physically and mentally disabled homeless person will be charged with felony burglary, held on $20,000 bond, and likely sentenced to at least 5 years in prison for doing nothing more than seeking shelter from one of Florida's torrential rainstorms so as not to catch life-threatening pneumonia.

Yet we treat personified vessels better than THIS -- allowing a vessel in a storm top claim the necessity of taking shelter at a stranger's dock.

Some of you people should be ASHAMED!!!!
2.14.2008 1:28pm
Mary Katherine Day-Petrano (mail):
corr" "top" = to
2.14.2008 1:30pm
La Rana (mail) (www):
I get the feeling Professor Kolber generally writes in other areas. Punishment theory is a very provincial subject, with a handful or more of very dedicated theorists around the world.

I mention this because Kolber's references are a little thin and obtuse. What his paper is concerned with, the subjective experience of sentenced offenders, is generally referred to as 'sensibility', yet he does not seem to be aware of this.

I could be mistaken, as I only skimmed the article, but it appears Kolber has written about something which has already been well-covered by the likes of Michael Tonry, Andrew Von Hirsch, David Garland, Norval Morris, etc. Kolber cites a few of these authors, but not in any substantive way that suggests he has read even the major works.

His thesis, otherwise referred to as a critique of the principle of proportionality, does not appear to offer anything new. Again, I could be wrong, but I don't think so.
2.14.2008 2:39pm
Adam J:
DrGrishka - No, the two theories don't have similar limitations at all. They're based on different premises, one seeks to protect society, one is a bit more intangible- our sense of fairness I guess.

I'm not sure what you are referring to as "the problem." You seem to be dealing with two variables here, not one. The first variable is the one we have been discussing- one's sensitivity to punishment- however utilitarian justice doesn't give a rats ass about this. The second is that the amount of negative reinforcement necessary to deter will vary with the individual- deterrance should be concerned with this variable. Both of these factors have some correlation, but it is possible that a person who isn't deterred easily is actually quite sensitive to punishment.
Anyways, punishment in this day and age is ill equipped to deal with these problems on an individual basis- we simply can't tell just how sensitive a person is or how likely an individual is to be deterred. The closest we get analyzing this is probably by increasing severity based on an individual's recidivism rate.
2.14.2008 3:07pm
I don't think the limitations on our knowledge of sensitivity of individuals is necessarily a barrier to a prison structure that takes the factor into account if, as I suggest above, you vary the conditions of confinement rather than the length of comfinement in an effort to equalize overall suffering.

Imagine, if you will, a prison with nine circular wings (for amusement's sake). An inmate enters into the Fourth Circle of this prison and is evaluated periodically by how well he behaves relative to other members of that segment of the population. If he is weaker/more sensitive/better, he moves to a Higher Circle with lower suffering. If he is worse, he moves to a Lower Circle with higher suffering. Quite quickly the prison population should stabilize into a structure where prisoners are segmented by badness/weakness. In addition, since the objective of all prisoners will be to minimize their suffering this structure should have the effect of having prisoners act as good as they possibly can given their innate nature.
2.14.2008 3:38pm
What did the sadist do to the masochist?

2.14.2008 4:29pm
American Psikhushka (mail) (www):
Couple points:

- What if the person is innocent, but principled and unyielding? Innocence (and the outrage and anger of an innocent person falsely accused) can seem "insensitive" to those who wrongly think someone is guilty. And note that in that situation it is the innocent "prisoner" that is the victim and the punishers who are - knowingly or unknowingly - the criminals. (Yes, you are committing a crime when you falsely imprison or otherwise "punish" someone. In most cases those responsible just happen to be immune. Thankfully they're not immune in all cases.)

- As far as retribution is concerned I'm all for it as long as those involved in false claims and false convictions get at least double or triple the retribution that was or would have been imposed on their victim. This includes those making false claims, conspiring or assisting in making false claims, corrupt attorneys, corrupt judges, corrupt law enforcement personnel, those hiding, destroying, or tampering with evidence, etc. And this should be sex-normed - women often get much shorter or more mild sentences for their crimes, the retribution should consist of at least double or triple the male sentence.

If you're going to indulge in this focus on retribution, at least do it in a manner that would try to address some of the massive problems in our hopelessly corrupt and incompetent legal system.
2.14.2008 5:01pm
After an extensive study at a base in Cuba, the CIA has detected an above average rate of apparent masochism among males of middle eastern descent. In response to questioning from a reporter, a spokesman for the CIA said "Back off man, we're scientists!"
2.14.2008 5:03pm
American Psikhushka (mail) (www):
Oops - I shouldn't have said "sex-normed" in the second paragraph above. I should have said the retribution should be double or triple the male sentence if the false claim or conviction was committed against a male.
2.14.2008 5:11pm
Elliot123 (mail):
You are perfectly correct that the subjective punishment experience will differ, and if we could measure it, we could fine tune each sentence to provide an exactly equal punishment index.

Then we could add a variable for the sensitivity index of the victim. The victim's sensitivity varies just as much as the convicted. So, we could adjust the punishment up and down for the criminal's sensitivity, and we could adjust it up and down for the victim's sensitivity.

We could even use this approach for torts. The plaintiff's sensitivity index could be applied to any jury verdict to reflect the real subjective damages.

But, why stop there? Shouldn't we incorporate the sensitivity indices of the jury so all juries are normalized on sensitivity? Is it proper for one defendent to have an insensitive jury while another has a sensitive jury? Or perhaps insensitive defendents should have insensitive juries, while sensitive defendents had sensitive juries?

And we could do all this if we had even a little bit of the knowledge we pretend to have.
2.14.2008 5:12pm
DrGrishka (mail):
I was thinking of deterrence not as individual reinforecement, but as societal one. In other words, it is not meant to deter the individual (since he already committed the crime), but others, by telling them "this will happen to you too, if you misbehave."

In that sense, the "this" which will happen is a specific punishment. The question is how do we measure punishment? Is it purely number of days and hours spent in isolation or is it amount of "pain" (for lack of a better word) inflicted on the transgressor? If the latter, then we must admit that pain varies from individual to individual. And if we are determined to inflict X pain, then that needs to be taken into account.
2.14.2008 5:40pm
Adam J:
DrGrishka- ah, okay, so we're dealing with general deterance. (Specific deterance is focused on deterring the criminal, general deterance is focused on deterring everyone.)

The thing about deterance is it isn't even really concerned with equal punishment. After all, if we are utilitarians, we are just looking for the best way to protect society. General deterance can even justify more extreme punishments in certain situations (a greater sentence when there is publicity means more people deterred). Utilitarian justice is only concerned with fairness indirectly (unlike retribution- where fairness is the highest priority), it's concerned only to the degree society may be harmed by unfair results (e.g. people thinking the system is arbitrary and deciding not to follow the law).
2.14.2008 6:50pm
Peter Wimsey:
Conceptually this system is very similar to the method of determining traffic (and other penal) fines in scandinavian countries. I.e., instead of the penalty for speeding and other infractions being a fixed monetary amount, it is set in relation to the violator's earnings in a day. So speeding less than 20 mph over the limit might be 50% of what you earn in a day; speeding more than that might be 1 days wages, etc.

Of course, this is much easier to administer because it is both an objective system and a system which is easy to defend as fair. (And proportional, even.)
2.14.2008 7:52pm
TGGP (mail) (www):
Deterrence and rehabilitation are jokes. It's all about incapacitation.
2.14.2008 9:00pm
If sensitive and insensitive both steal a loaf of bread, then why should sensitive get a slap on the wrist and insensitive have his hand lopped off, just because sensitive is a fucking complete pussy? that would seem a little unfair on insensitive, punishing him for not being a wimp
2.14.2008 10:28pm
John Neff:
In general the subject of discussion is if the demeanor of the convicted person is stoical or tormented or something in between. My impression is that it is better for a prisoner to appear stoical rather than tormented no matter what their true feeling are.

It also appears to me that from the point of view or the legislature the main objectives are temporary or permanent incapacitation depending on the severity of the offense and the appearance of retribution. I think that most legislators realize that retribution is overrated but some voters think otherwise.
2.14.2008 11:39pm
Asher Steinberg (mail):
How do we know who's Sensitive and who's Insensitive until they go to prison? And how do we calibrate it? Do we ask prisoners to rate how unpleasant a year of prison is on a 1-10 scale, say that a crime deserves 40 unpleasantness points, and then give a guy who gives prison a 10 four years and a guy who gives prison a 5 eight years? Obviously we can't do that, because everyone would lie. Given that everyone will pretend to be more sensitive to get less time, how do you administer this system at all? I suppose you can't keep the calibration a secret, but in the first place it would be wrong, and in the second it would be impossible. Do we ask psychologists to rate the prisoners' sensitivity? It's not so hard to deceive a psychologist. Is there some kind of test we could just administer? I don't know that you could design a test that could measure exactly how much a person would dislike prison, though maybe you could measure sensitivity in general.
2.15.2008 12:22am
TruePath (mail) (www):
Well the fundamental problem here is the idea that it is ever good or desirable to make someone suffer (other things being equal). In fact I think this neurolaw stuff helps make a very compelling argument for this point. Notice that from a utilitarian perspective your argument is much much weaker.

Yes, it suggests that some very easy to identify and hard to fake differences like size in prison might be worth considering but it would likely be both harder to consider these and do worse in a cost/benefit analysis than just fixing the problems with prison rape and violence. Moreover, the harm from the irrational perception of unfairness likely outweighs the benefits from a utilitarian perspective. Finally since the goal is entirely deterrence it is important that the examples be clear cut and easy to remember. It would be hard to remember the formula that assigns you years in jail for theft but it would be easy to remember a number or small range.


I think we can characterize a retributive theory as one which would sometimes favor using a machine that inflicted great suffering for 5 minutes while leaving no memory of it even if the public at large doesn't believe the machine works (no deterrence). However, is there any principled reason why we would subject a 20 year old thug who points a gun at his friend on a lark and pulls the trigger using this machine more than an 8 year old?

Most of the reasons not to punish the 8 year old are eminently practical (little deterence, mess him up for life, hard to care for in prison) but a perfect punishment leaving no memory avoids these practical concerns thus the answer must lie somewhere else. Most people would cite suggestions that the child is somehow not really responsible for his actions, that he doesn't fully appreciate the consequences, or that he can't help it because his brain is immature. However, at 8 the child knows the action is wrong and choose to do so anyway. Indeed at 8 the child would surely be able to explain that his friend would die and never come back so it's unclear how you can cite ignorance or inability to appreciate the consequences.

Maybe you argue that the 20 year old understands the grief and suffering caused by a death more than the 8 year old because they've seen more people grieve. Or they appreciate how much most people don't want to die. However, I'm skeptical this is true as a general rule and if you really believed this you should punish those who have experienced suffering (dead friends, dead parents etc..) more than those who haven't since their greater familiarity with grief makes them more culpable. This really leaves only the argument that the child lacks some requisite capacity for full culpability.

However, it's not clear what kind of capacity that could be. After all if 8 year olds really lacked the relevant capacity shouldn't they be more likely to actually shoot their friends given guns? Ultimately this idea doesn't even make sense. All actions are at root caused by neurological events so unless you think that the ones we have been able to give nice names to so far are more morally relevant it's hard to see how anyone was capable of doing anything other than they did.

In short it seems the simpler theory is that the retributive theory isn't so much a serious theory but a reflection of our basic desires or revenge and sympathy. It's not that we can find some principled reason children should not be the object of as much retribution, it's that we are programmed to be more sympathetic and caring for them. In fact most plausible theories would suggest that (applied by a christian) we should inflict more suffering on the christian than the atheist (greater capacity) and more on the promising young student than the no good street punk (worse circumstances) yet people's intuitions in actual cases go just the other way.
2.15.2008 2:32am
Richard Aubrey (mail):
The Menendez bros were outfitted in sweaters for their trials, in order to sway the jury. Warm, inoffensive vibes.
With sensitivity hauled in to affect sentenceing, what will the defense attorneys think of? If it were not such a lousy idea, I'd be interested in it happening, for the entertainment value.

Campus speech codes and other restrictions on behavior are activated by feigned offense. So we know that it works, and it's been thought of. Feigned sensivity??? "The Actor Prepares" by Stravinsky could get a major reprinting.
2.15.2008 8:45am
Adam J:
TGGP - Deterance is no joke- all that article is really noting is the diminishing returns on deterance that occur as punishments get more severe. Since most people that have chosen to become criminals aren't particularly rational (they tend to have a ridiculously high discount rate- i.e. they don't consider the future consequences of their actions), they've unlikely to be any further deterred by a more severe punishment. However, were there to be little or no punishment, many rational (and immoral) people would find the reward to outweigh the risk and choose to commit crimes.
2.15.2008 10:53am
Mary Katherine Day-Petrano (mail):
"Imagine, if you will, a prison with nine circular wings (for amusement's sake)." --->

I think you are talking about Dante's Inferno, not prison. There is no survival for Sensitive there.
2.15.2008 11:20am
Richard Aubrey -

Stanislavski. All these Russians...
2.15.2008 12:47pm
Richard Aubrey (mail):

Russians have a lot of experience in punishment of various sorts. Could be a valuable resource.
2.15.2008 3:04pm