Abstract
Offenders vary in their sensitivity to punishment. In recent years, this observation has formed the basis of a critique of retributivism (the view that wrongdoers should suffer or be punished in proportion to the seriousness of their wrongdoing). According to the subjectivist critique, retributivists must choose between two bad options. If they ignore variation in how offenders experience punishment and are worsened by it, they will fail to justify punishment practices, such as incarceration, that inevitably inflict experiential harms and worsen offenders to varying degrees. Even if these harms do not formally constitute punishment, they reduce desert debt and must be considered to avoid overpunishment. If, however, retributivists properly consider experiential harms and other worsenings, they are led to counterintuitive results—for example, that the wealthy should generally spend less time in prison or have better conditions than the poor when they commit equally serious crimes. Hence, the subjectivist critique reveals that retributivism cannot justify common punishment practices, such as incarceration, without also leading to conclusions that most will find unappealing.
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Notes
- 1.
Immanuel Kant made related observations, noting for example that proportional punishment can be achieved “if regard is had to the special sensibilities of the higher classes” (Kant 1999, p. 139). CesareBeccaria recognized but rejected concerns about variation in subjective experiences, writing that “the measure of punishment is not the sensitivity of the criminal, but the harm done to the public” (Beccaria 1995, pp. 51–52).
- 2.
Not all retributivists make proportionality fundamental to retributivism. According to Mitch Berman, for example, the “core retributivistclaim” is “that it is intrinsically valuable or right to furnish wrongdoers with the negative consequences that they deserve” (Berman 2016, p. 35). Proportionality, however, has undoubtedly played a central role in retributivism over the last several decades (Husak 2011, p. 414). Retributivism has little practical use without some measure of what wrongdoers deserve, and proposed answers invariably rely on some form of proportionality.
- 3.
Consequentialists are not committed to proportionality in the way that retributivists typically are, and so the subjectivist critique does not apply to them. Indeed, many consequentialists would be quite receptive to the view that emotional harms are a cost of punishment and that anticipated subjective experience may affect optimal deterrence (Kolber 2009b, pp. 216–19; cf. Baer 2009).
- 4.
Suppose, for example, that seven years’ incarceration is a proportional sentence for rapists of average sensitivities, and suppose there are some rapists who could present evidence that they are ten times more sensitive than average. In order to punish all rapists without regard to their sensitivities, we couldn’t punish any of them with more than about eight months’ incarceration.
- 5.
While we are a long way from having accurate hedonimeters, Stanford researchers are currently testing a wearable patch that measures levels of cortisol, a hormone that is a rough proxy for certain kinds of stress (Perry 2018). Future developments may give us more accurate and comprehensive information about subjective experience (Kolber 2011).
- 6.
Two empirical studies have examined lay intuitions about the subjective experience of punishment. They both support experientially sensitive intuitions about monetary punishments but reach mixed conclusions as to non-monetary punishments (Montag and Sobek 2014; Montag and Tremewan Forthcoming).
- 7.
Of course, as the number of innocent lives at risk increases enough, say 1000 innocents, threshold deontologists may permit the execution of the innocent despite the prohibition against it. The example in the text is meant to be insufficiently severe to trigger such thresholds as such thresholds are presumably only available in extreme rather than run-of-the-mill circumstances (Moore 1997, p. 719; Alexander 2000; Kolber 2018, pp. 530–31).
- 8.
Alternatively, Husak could invoke the ceterisparibus clause to claim that it’s okay for Hilton to suffer more than her equally blameworthy counterpart precisely because all is not equal. I don’t think this is the path Husak would choose as it would lead to violations of the overpunishment prohibition when judges seek to punish her proportionally without considering her sensitivity. It’s also not clear how sensitivity can serve as grounds for implicating the ceteris paribus clause. It’s one thing to deviate from proportionality when proportional punishment would be too expensive or impractical (Husak 1992), but here we are trying to understand what it means to treat Hilton proportionally even when we’re not worried about real-world resource limitations.
- 9.
The state may have obligations to justify conduct that ordinary people do not have. Therefore, satisfying the justification symmetry principle is necessary but may not be sufficient to justify a state punishment practice.
- 10.
Another option is to cease giving credit for time served (Ferzan 2018, pp. 286–87), but many would find that counterintuitive.
- 11.
Use of the DDE also raises questions about the relative rate at which desert and side-effect harms change as sentences are served. If an offender deserved ten years’ incarceration as punishment but has already served five, have we already extracted more than, less than, or exactly half of the value of the desert we seek? If we could either give two offenders half of the equal amounts of punishment they deserve or one offender all of it, I suspect most would prefer to give two offenders half. That suggests that the value of desert is not a simple function of the duration of a sentence. Similar questions can be raised about how the magnitude of side-effect harms changes over time (Bronsteen et al. 2009). If desert and side-effect harms change at different rates, side-effect harms on particular inmates might be justified by the DDEduring some parts of a sentence but not others.
- 12.
Of course, we do regularly restrict the rights of inmates’ friends and relatives to associate with inmates, even though these friends and relatives deserve no such harms. The DDE is insufficient to justify such practices as illustrated by the thought experiment in the text. We would not ordinarily think it permissible to dramatically limit your freedom to see your parents or children if doing so were necessary to give some third party his just deserts. There must be some other principle at play besides the DDE to adequately support the practice.
- 13.
Walen doesn’t make entirely clear, however, whether his test aims to justify: (1) unintended harms of punishment as required by the justification symmetry principle, (2) unintended differences in harm among offenders as a matter of equality, or (3) both.
- 14.
Baseline conditions are generally taken to be either a person’s condition before some pertinent event or his condition had the event not occurred. We needn’t choose between these options for present purposes.
- 15.
Indeed, it’s not even clear whether laypeople require sentences of equal duration to be in objectively similar conditions in order to deem them equal. Consider how often news articles mention offenders’ prison sentences and how rarely they address the severity of their likely conditions of confinement. Many seem to have a kind of “duration fetish” when it comes to incarceration where little but elapsed time seems to matter (Kolber 2013, p. 1159).
- 16.
Larry Alexander and Kim Ferzan adopt a version of the whole life view (Alexander and Ferzan 2018, pp. 200–04). They respond to the get-out-of-jail-free card concern by noting that the person who stands to benefit would not be morally permitted to take advantage of the card and that trying to take advantage would itself be culpable. Still, they appear ready to tolerate the “moral madness” of allowing those with get-out-of-jail-free cards to commit crimes without punishment where, for example, someone is erroneously convicted of a serious crime with a long sentence and then, upon release, commits a far less serious crime. Even if the second crime has additional culpability for trying to take advantage of the system, the offender’s total culpability is likely dwarfed by the suffering he has already experienced during the time he was erroneously incarcerated.
- 17.
For helpful comments on earlier drafts, I thank Larry Alexander, Doug Husak, John Oberdiek, Tom Parr, Patrick Tomlin, and Alec Walen. This project was generously supported by a summer research stipend from Brooklyn Law School and a visiting fellowship at NYU School of Law’s Center for Research in Crime and Justice.
References
Alexander, Larry. 2000. Deontology at the threshold. San Diego Law Review 37: 893–912.
Alexander, Larry, and Kimberly Kessler Ferzan. 2009. Crime and culpability: A theory of criminal law. Cambridge: Cambridge University Press.
———. 2018. Reflections on crime and culpability: Problems and puzzles. Cambridge: Cambridge University Press.
Alexander, Larry, and Maimon Schwarzschild. 1986. Liberalism, neutrality, and equality of welfare vs. equality of resources. Philosophy & Public Affairs 16: 85–110.
Baer, Miriam. 2009. Evaluating the consequences of calibrated sentencing: A response to Professor Kolber. Columbia Law Review Sidebar 109: 11–20.
Beccaria, Cesare. 1995. On crimes and punishments and other writings, ed. Richard Bellamy and trans. Richard Davies. New York: Cambridge University Press. (Orig. Pub. 1764).
Bentham, Jeremy. 1988. The principles of morals and legislation. Amherst: Prometheus Books. (Orig. Pub. 1789).
Berman, Mitchell N. 2011. Two kinds of retributivism. In The philosophical foundations of criminal law, ed. R.A. Duff and Stuart Green, 35–47. Oxford: Oxford University Press.
———. 2013. Rehabilitating retributivism. Law and Philosophy 32: 83–108.
———. 2016. Modest retributivism. In Legal, moral, and metaphysical truths: The philosophy of Michael S. Moore, ed. Kimberly Kessler Ferzan and Stephen J. Morse, 35–47. New York: Oxford University Press.
Blackstone, William. 1765. Commentaries on the Laws of England. Vol. 4, 1860. Philadelphia: Childs and Peterson.
Bronsteen, John, Christopher Buccafusco, and Jonathan Masur. 2009. Happiness and punishment. University of Chicago Law Review 76: 1037–1081.
Dworkin, Ronald. 1981. What is equality? Part 1: Equality of welfare. Philosophy & Public Affairs 10: 185–246.
Ezorsky, Gertrude. 1972. The ethics of punishment. In Philosophical perspectives on punishment, ed. Gertrude Ezorsky, xi–xxvii. Albany: State University of New York Press.
Feinberg, Joel. 1992. Wrongful life and the counterfactual element in harming. In Freedom and fulfillment: Philosophical essays, 3–36. Princeton: Princeton University Press.
Ferzan, Kimberly Kessler. 2018. Defense and desert: When reasons don’t share. San Diego Law Review 55: 265–289.
Gray, David. 2010. Punishment as suffering. Vanderbilt Law Review 63: 1619–1693.
Hart, H.L.A. 1968. Punishment and responsibility. New York: Oxford University Press.
Husak, Douglas N. 1990. Already punished enough? Philosophical Topics 18: 79–99.
———. 1992. Why punish the deserving? Noûs 26: 447–464.
———. 2011. Retributivism, proportionality, and the challenge of the drug court movement. In Retributivism has a past, has it a future? ed. Michael Tonry, 214–233. New York: Oxford University Press.
———. 2019 Forthcoming. The metric of punishment severity. In Of one-eyed and toothless miscreants: Making the punishment fit the crime? ed. Michael Tonry. New York: Oxford University Press.
Kant, Immanuel. 1999. Metaphysical elements of justice. 2nd ed. Trans. John Ladd. Indianapolis: Hackett. (Orig. Pub. 1797).
Kolber, Adam J. 2009a. The comparative nature of punishment. Boston University Law Review 89: 1565–1609.
———. 2009b. The subjective experience of punishment. Columbia Law Review 109: 182–236.
———. 2011. The experiential future of the law. Emory Law Journal 60: 585–652.
———. 2012. Unintentional punishment. Legal Theory 18: 1–29.
———. 2013. Against proportional punishment. Vanderbilt Law Review 66: 1147–1158.
———. 2018. Punishment and moral risk. Illinois Law Review 2018: 487–532.
———. 2019 Forthcoming. The time frame challenge to retributivism. In Of one-eyed and toothless miscreants: Making the punishment fit the crime? ed. Michael Tonry. New York: Oxford University. Press.
Levenson, Eric. 2019. Bill Cosby’s spokesman says the comedian thinks prison is an “amazing experience”. CNN.com. https://www.cnn.com/2019/02/12/us/bill-cosby-prison/index.html. Accessed 23 Feb 2019.
Markel, Dan, and Chad Flanders. 2010. Bentham on stilts: The bare relevance of subjectivity to retributive justice. California Law Review 98: 907–988.
Montag, Josef, and Tomáš Sobek. 2014. Should Paris Hilton receive a lighter prison sentence because she’s rich? An experimental study. Kentucky Law Journal 103 (2014): 95–125.
Montag, Josef, and James Tremewan. Forthcoming. Let the punishment fit the criminal: An experimental study. Journal of Economic Behavior and Organization.
Moore, Michael. 1997. Placing blame: A general theory of criminal law. New York: Oxford University Press.
Perry, Tekla S. 2018. New wearable sensor detects stress hormone in sweat. IEEE Spectrum.https://spectrum.ieee.org/view-from-the-valley/biomedical/diagnostics/new-wearable-sensor-detects-stress-hormone-in-sweat. Accessed 23 Feb 2018.
Quinn, Warren S. 1989. Actions, intentions, and consequences: The doctrine of double effect. Philosophy and Public Affairs 18: 334–351.
Scanlon, T.M. 1975. Preference and urgency. Journal of Philosophy 72: 655–669.
Shiffrin, Seana Valentine. 2012. Harm and its moral significance. Legal Theory 18: 357–398.
Simons, Kenneth W. 2001. On equality, bias crimes, and just deserts. Journal of Criminal Law & Criminology 91: 237–267.
———. 2009. Retributivists need not and should not endorse the subjectivist account of punishment. Columbia Law Review Sidebar 109: 1–10.
Tadros, Victor. 2011. The ends of harm: The moral foundations of criminal law. Oxford: Oxford University Press.
Walen, Alec. 2014. Retributive justice. Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/entries/justice-retributive/. Accessed 23 Feb 2019.
Wallace, David Foster. 2004. Consider the lobster. Gourmet, August, pp. 50–64.
Waxman, Sharon. 2007. Celebrity justice cuts both ways for Paris Hilton. New York Times, June 9.
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Kolber, A.J. (2019). The Subjectivist Critique of Proportionality. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_24
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