The subjective experience of punishment

Columbia Law Review

Volumn 109, Issue 1, 2009, Pages 182-236

  Kolber, Adam J ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 60049101482     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (273)

1. Jeremy Bentham, The Principles of Morals and Legislation 182 (Prometheus Books 1988) (1789);
2. cf. Immanuel Kant, Metaphysical Elements of Justice 139 (John Ladd trans., Hacket Publ'g Co., 2d ed. 1999) (1797) (stating that proportional punishment can be achieved "if regard is had to the special sensibilities of the higher classes").
3. Before Bentham, Cesare Beccaria recognized but rejected concerns about variation in offenders' experiences of punishment.
4. See Cesare Beccaria, On Crimes and Punishments 51-52 (Richard Bellamy ed., Richard Davies trans., Cambridge Univ. Press 1995) (1764) (arguing that "the measure of punishment is not the sensitivity of the criminal, but the harm done to the public").
5. Modern writers have generally made only brief reference to the problem. See, e.g., Leo Katz, Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law 155-56 (1996);
6. Nigel Walker, Why Punish? 99-105 (1991);
7. Douglas N. Husak, Already Punished Enough, 18 Phil. Topics 79, 82 (1990) [hereinafter Husak, Already] ;
8. Mary Sigler, Just Deserts, Prison Rape, and the Pleasing Fiction of Guideline Sentencing, 38 Ariz. St. L.J. 561, 576-77 (2006);
9. Andrew von Hirsch et al., Punishments in the Community and the Principles of Desert, 20 Rutgers L.J. 595, 607-08 (1989).
10. More detailed discussion is provided especially by Jesper Ryberg, The Ethics of Proportionate Punishment 102-09 (2004), as well as by Norval Morris & Michael Tonry, Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System 93-108 (1990);
11. Andrew Ashworth & Elaine Player, Sentencing, Equal Treatment, and the Impact of Sanctions, in Fundamentals of Sentencing Theory 251, 251-61 (Andrew Ashworth & Martin Wasik eds., 1998);
12. and Christine Piper, Should Impact Constitute Mitigation?: Structured Discretion Versus Mercy, 2007 Crim. L. Rev. 141, 142-47.
13. See, e.g., Kenneth Adams, Adjusting to Prison Life, 16 Crime &Just. 275, 282-90 (1992) (identifying substantial variation in prisoner coping styles and abilities);
14. Lee H. Bukstel & Peter R. Kilmann, Psychological Effects of Imprisonment on Confined Individuals, 88 Psychol. Bull. 469, 487 (1980) ("[E]ach individual who experiences prolonged confinement reacts to this situation in an idiosyncratic manner: Some individuals show deterioration..., others show improved functioning, whereas others show no appreciable change.").
15. In cases of long-term confinement, however, inmates may gradually revert to their baseline affective states. See infra notes 119-123 and accompanying text.
16. See United States v. Booker, 543 U.S. 220, 226-27, 245-46 (2005) (holding that United States Sentencing Guidelines are advisory and cannot constitutionally bind sentencing judges). For useful background on the Booker line of cases, see Douglas A. Berman, Rita, Reasoned Sentencing, and Resistance to Change, 85 Denv. U. L. Rev. 7 (2007).
17. Pew Ctr. on the States, One in 100: Behind Bars in America 2008, at 3 (2008), available at http://www.pewcenteronthestates.org/uploadedFiles/ One%20in%20100.pdf (on file with the Columbia Law Review);
18. see also Solomon Moore, Justice Dept. Data Show Prison Increases, N.Y. Times, Dec. 6, 2007, at A26 (reporting Department of Justice data showing that, in 2006, "[a]n estimated 2.38 million people were incarcerated in state and federal facilities");
19. Sam Roberts, College Dwellers Outnumber the Imprisoned, N.Y. Times, Sept. 27, 2007, at A29 (finding that more than two million Americans live in prison).
20. I argue that we must consider certain experiences of punishment when assessing punishment severity, but I take no particular stand on which mental states we should treat as disvaluable. Disvaluable mental states might include sadness, anxiousness, and boredom, as well as more complicated mental states involving unsatisfied preferences or negative evaluations of other mental states, even when such mental states are not traditionally thought of as experiences. For discussion of some of the relevant complexities, see Mark Kelman, Hedonic Psychology and the Ambiguities of "Welfare," 33 Phil. & Pub. AfF. 391, 398-411 (2005).
21. The truncation method of punishment was suggested to me by Adam Elga.
22. See Morris & Tonry, supra note 1, at 94-95.
23. 7 F. Supp. 2d 192, 195 (E.D.N.Y. 1998), affd, 166 F.3d 1202 (2d Cir. 1998).
24. Id. at 211.
25. Id.
26. Sentencing courts may depart downward to address circumstances "of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b) (2000). On this basis, a number of courts, like the court in Blarek, have permitted downward departures for offenders particularly vulnerable to abuse in prison.
27. See, e.g., United States v. Wilke, 156 F.3d 749, 752 (7th Cir. 1998) (noting district court's decision to depart downward where possessor of child pornography claimed heightened vulnerability to abuse);
28. United States v. Graham, 83 F.3d 1466, 1481 (D.C. Cir. 1996) (permitting extreme vulnerability to assault as ground for departure but noting that "a defendant's vulnerability must be so extreme as to substantially affect the severity of confinement, such as where only solitary confinement can protect the defendant from abuse");
29. United States v. Lara, 905 F.2d 599, 601, 605 (2d Cir. 1990) (affirming downward departure based on defendant's likelihood of victimization given his "diminutive size, immature appearance and bisexual orientation");
30. see also Sigler, supra note 1, at 570-78 (arguing against sentence reductions based on prisoner vulnerability).
31. See, e.g., Morris & Tonry, supra note 1, at 94 (noting that "two three-year prison sentences may, both objectively and subjectively, be very different").
32. Cf. Aristotle, Nichomachean Ethics, bk. II, ch. 6, §§ 7-8, at 24 (Terence Irwin trans., Hackett Publ'g Co., 2d ed. 1999) (n.d.) (recognizing that what constitutes healthy quantity of food is different for experienced wrestler than for novice).
33. Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 429, 443-50 (4th ed. text rev. 2000). In particular, it is a "situational type" of specific phobia. Id. at 445.
34. See Adam S. Radomsky et al., The Claustrophobia Questionnaire, 15 J. Anxiety Disorders 287, 288 (2001) (describing causes and symptoms of claustrophobia).
35. Id.
36. Lars-Goran Ost, The Claustrophobia Scale: A Psychometric Evaluation, 45 Behav. Res. & Therapy 1053, 1053-54 (2004).
37. Radomsky et al., supra note 15, at 288.
38. Claustrophobia, Time, Aug. 14, 1933, at 30, 30.
39. Id.
40. Id.
41. Id.
42. Lawrence Van Gelder, Probation and Fines for Paris Hilton, N.Y. Times, Jan, 23, 2007, at E2;
43. Sharon Waxman, Celebrity Justice Cuts Both Ways for Paris Hilton, N.Y. Times, June 9, 2007, at A1.
44. Tina Dirmann, Closet Case?, The Hum Blog, E! Online, June 9, 2007, at http://www.eonline.com/gossip/hum/detail/index.jsp?uuid=71adcb92-4731-4b0d-9889- 4158655ec581 (on file with the Columbia Law Review).
45. Susie Boniface, Paris Illness Is Claustrophobia, Sunday Mirror (London), June 10, 2007, at 3, available at http://www.mirror,co.uk/sunday-mirror/tm- headline=paris-illnessis-claustrophobia&method=full&objectid= 19273224&siteid=98487-name-page.html (on file with the Columbia Law Review);
46. William Booth, Sheriff Releases Paris Hilton... For Now Anyhow, Wash. Post, June 8, 2007, at Cl.
47. Associated Press, Prosecutor, Judge Object to Hilton's Early Release, USATODAY.com, June 7, 2007, at http://www.usatoday.com/life/people/2007-06-07- paris-prosecutor-N.htm (on file with the Columbia Law Review).
48. Scott Michels, Hilton Transferred from Jail Medical Ward, ABC News, June 14, 2007, at http://abcnews.go.com/TheLaw/story?id=3278824 (on file with the Columbia Law Review).
49. I discuss the relationship between punishment sensitivity and wealth in more detail infra Part III.D.
50. In United States v. LiButti, however, a federal district court judge departed downward from established federal sentencing guidelines due to a variety of factors, one of which was the defendant's claustrophobia. Crim. No. 92-611, 1994 WL 774647, at *1 (D.N.J. Dec. 23, 1994).
51. Also, in United States v. Farley, a former air force officer was convicted of "a single wrongful use of marijuana," and requested a noncustodial sentence because of her documented history of claustrophobia. No. ACM S28899, 1995 WL 261943, at *1 (A.F. Ct. Crim. App. Apr. 26,1995). She did, in fact, receive a noncustodial sentence, though it is not clear whether it was granted because of her claustrophobia or for other reasons, like her acceptance of responsibility or her expressions of regret.
52. See id.
53. In Goetsch v. Berge, for example, Goetsch challenged the conditions of his confinement under § 1983 and the Eighth Amendment, claiming that prison officials failed to adequately address his claustrophobia. 3 F. App'x 551, 552 (7th Cir. 2001) (nonprecedential). To make out the Eighth Amendment claim, he had to allege: (1) "that there was an objectively serious danger that posed a substantial risk of serious harm to his health or safety" and (2) "that the prison officials were deliberately indifferent to the risk."
54. Id. at 553. The court doubted that his claustrophobia satisfied the first requirement. Importantly, the court stated: Goetsch has not cited, and we could not find, any cases holding that placing an individual with claustrophobia in such a cell creates an objectively serious danger, and given that confinement of prisoners in cells of limited size is inherent in imprisonment, we are hesitant to make such a finding outside of an extreme case.
55. Id. More decisively, however, Goetsch failed to satisfy the second prong, which requires a showing that prison officials were deliberately indifferent to the risk posed by his circumstances: Goetsch needed to allege recklessness on the part of the defendants, not mere negligence or poor judgment.... Goetsch asserted merely that he told [a prison crisis worker and a prison doctor] that he was suffering from feelings of claustrophobia and that he wanted to be moved to a bigger cell. He does not allege that he told these defendants that he was clinically diagnosed with claustrophobia, nor that he complained to either of the defendants more than once.
56. Id. The court also denied his claim because a prison doctor ordered that a window in Goetsch's cell be opened, a step which helped to ameliorate his condition.
57. Id. at 552;
58. see also United States v. Kwong, 877 F. Supp. 96, 103 (E.D.N.Y. 1995) (stating that even if court accepted defendant's claim that his claustrophobia would recur, "no reason has been given by the defendant to indicate why this condition should be considered extraordinary" enough to warrant downward departure from sentencing guidelines);
59. State v. Guiendon, 273 A.2d 790, 791-92 (N.J. Super. Ct. App. Div. 1971) (denying defendant's claim that ninety days imprisonment was cruel and unusual punishment in light of his asserted claustrophobia because court doubted veracity of his assertion).
60. According to Federal Bureau of Prisons policy, "[t]o ensure consistent treatment throughout the system, each institution shall develop a comprehensive approach for managing mentally ill inmates which emphasizes the management of these cases in a regular correctional setting, rather than in a hospitalized setting, as the preferred treatment strategy whenever and wherever feasible." Fed. Bureau of Prisons, U.S. Dep't of Justice, P.S. 5310.13, Institution Management of Mentally 111 Inmates § 6, at 3 (1995), available at http://www.bop.gov/policy/progstat/5310-013.pdf (on file with the Columbia Law Review) (emphasis added). Apparently, the Bureau construes the "consistent treatment" requirement in objective rather than subjective terms.
61. U.S. Sentencing Guidelines Manual § 5H1.3 (2007) ("Mental and emotional conditions are not ordinarily relevant in determining whether a departure is warranted, except as provided in Chapter Five, Part K, Subpart 2 (Other Grounds for Departure)."). The other ground for departure most likely to relate to mental and emotional conditions is for a "diminished capacity" that "contributed substantially to the commission of the offense."
62. Id. § 5K2.13.
63. Id. § 5H1.4;
64. see also United States v. Johnson, 318 F.3d 821, 826 (8th Cir. 2003) (reversing district court's decision to depart downward on basis of defendant's coronary condition);
65. United States v. Rabins, 63 F.3d 721, 728-29 (8th Cir. 1995) (holding that even if defendant were eligible for downward departure for extraordinary physical impairment, it was not clearly erroneous for district court to determine that defendant's HIV-positive status failed to qualify).
66. However, the Guidelines note that "an extraordinary physical impairment may be a reason to depart downward; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment." U.S. Sentencing Guidelines Manual § 5H1.4. While courts sometimes discuss this exception to the general rule in terms of the "hardship" presented by a physical impairment, e.g., Rabins, 63 F.3d at 729, courts often do their best to objectivize the requirement by focusing on medical resources available in prison and the effect of incarceration on the inmate's lifespan,
67. see, e.g., United States v. Krilich, 257 F.3d 689, 693 (7th Cir. 2001) ("An ailment also might usefully be called 'extraordinary' if it is substantially more dangerous for prisoners than non-prisoners. Then imprisonment would shorten the defendant's life span, making a given term a more harsh punishment than the same term for a healthy person.");
68. United States v. Albarran, 233 F.3d 972, 979 (7th Cir. 2000) ("[W]hen considering a departure based upon a physical impairment [the district court] 'must ascertain, through competent medical testimony, that the defendant needs constant medical care, or that the care he does need will not be available to him should he be incarcerated.' "
69. (quoting United States v. Sherman, 53 F.3d 782, 787 (7th Cir. 1995))).
70. Elaine Crawley & Richard Sparks, Older Men in Prison: Survival, Coping, and Identity, in The Effects of Imprisonment 343, 346-47 (Alison Liebling & Shadd Maruna eds., 2005) (stating that for older prisoners who are unfamiliar with prison culture, "the prison sentence represents nothing short of a disaster, a catastrophe, and, in consequence, they are often in a psychological state of trauma").
71. U.S. Sentencing Guidelines Manual § 5H1.1. However, "[a]ge may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration."
72. Id. In United States v. Bergman, the court stated that the "[d]efendant is 64 years old and in imperfect health, though by no means so ill, from what the court is told, that he could be expected to suffer inordinately more than many others of advanced years who go to prison." 416 F. Supp. 496, 501 (S.D.N.Y. 1976). The court did not explain why the defendant's suffering should be compared to the suffering of others of advanced years, nor why his comparative suffering needs to be "inordinately" greater for it to be considered.
73. Consider, for example, the case of the so-called "30-year-old virgin." Douglas Berman, Judge Posner and Sentencing the 30-Year-Old Virgin, Sentencing Law & Policy Blog, Jan. 10, 2008, at http://sentencing. typepad.com/sentencing-law-and-policy/2008/week2/index.html (on file with the Columbia Law Review).
74. In that case, United States v. Mcllrath, 512 F.3d 421 (7th Cir. 2008), the defendant was convicted of traveling across state lines to have sex with a minor (actually a police detective pretending to be a fifteenyear-old girl). Evidence was also presented that the defendant had, on another occasion, "persuaded a twelve-year-old girl to agree to have sex with him, although apparently they never did."
75. Id. at 422. The defendant's forty-six-month prison sentence was at the bottom of the applicable guideline range, but the defendant claimed it should have been lower still.
76. Id. Notably, a forensic psychologist "opined that prison would be devastating for the defendant; he 'would have almost no resources for coping with prison life' and would be a 'target for predators.'"
77. Id. Some of the evidence for the claim that the defendant had poor coping skills seems to have been that the thirty-one-year-old "was a loner who had not had sex until the previous year, with a woman who then rejected him, breaking his heart and (he claimed) precipitating the incidents with the twelve-year-old and (supposed) fifteen-year-old girl."
78. Id. Nevertheless, the sentencing judge refused to reduce the sentence, and the Seventh Circuit affirmed.
79. Id. at 426-27. Judge Richard Posner, writing for the panel, acknowledged that "[t]he defendant's history and characteristics were relevant in possibly suggesting both that imprisonment would be a more severe punishment for him than for the average Internet sexual predator."
80. Id, at 423-24. However, he added, "As far as we know or the defendant's lawyer or psychologist attempted to show, the average man who trolls for young girls in Internet chat rooms is no better adjusted than the defendant."
81. Id. at 424. Furthermore, the court noted: The guidelines sentencing ranges are designed with reference to the average offender in each crime category to which a given range applies. So if a particular defendant is average, his case for a sentence below the range is weak. As far as the record (or our independent research) discloses, the psychological characteristics of our defendant are average for Internet sexual predators.
82. Id. (citations omitted). Thus, even though this defendant failed to obtain a "high sensitivity" downward departure, the reasoning in the opinion suggests that arguments about sensitivity can be publicly made and, perhaps on other occasions, accepted.
83. In detailed interviews of over fifty federal judges from the 1980s, many judges expressed the belief that indictment and incarceration have differentially severe impact on white collar criminals. See Stanton Wheeler et al., Sitting in Judgment: The Sentencing of White Collar Criminals 144-50 (1988) ("The consensus among judges is that the suffering inflicted by the criminal process is an important factor in the sentencing calculation....") . Often the differences were expressed in objective terms (e.g., the white collar criminal can no longer practice his former profession), while other times differences were expressed in more subjective terms (e.g., the white collar criminal is likely to experience higher levels of shame).
84. Id. at 146-50. Given the increasing severity of white collar criminal punishments in recent years, one suspects that judges today would be less likely to mitigate punishment based on such sensitivities.
85. See Ellen Podgor, The Challenge of White Collar Sentencing, 97 J. Crim. L. & Criminology 731, 734, 756-59 (2007) (criticizing trend toward longer sentences for white collar criminals).
86. In the federal prison system, for example, the Bureau of Prisons, not judges, makes prisoner facility assignments. See 18 U.S.C. § 3621(b) (2000) ("The Bureau of Prisons shall designate the place of the prisoner's imprisonment").
87. See id.
88. An unusual bit of overlap between the prison system and the sentencing process is permitted by 18 U.S.C. § 3582(c)(1), which states that, under certain circumstances, the director of the Federal Bureau of Prisons can move a sentencing court to reduce a term of imprisonment that has already been imposed. See id. § 3582(c)(1);
89. United States v. Rabins, 63 F.3d 721, 729 n.15 (8th Cir. 1995) (noting that if defendant's illness progressed, director of Bureau of Prisons could seek sentence reduction).
90. On parole, see generally Frank O. Bowman III & Michael Heise, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa L. Rev. 1043, 1051-52 & nn.18-21 (2001) (describing broad discretion historically granted parole boards to determine precise length of inmates' sentences).
91. See, e.g., Cal. Penal Code § 3041 (a) (West 2005) (stating that, in addition to other requirements, parole "release date[s] shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public");
92. Tex, Bd. of Pardons & Paroles, Revised Parole Guidelines, at http://www.tdcj.state.tx.us/bpp/new-parole-guidelines/new-parole-guidelines. html (last updated July 28, 2008) (on file with the Columbia Law Review) (presenting Texas parole point system that seeks to determine risk level associated with offender release).
93. For example, a retributivist-consequentialist might count deserved suffering (or deserved punishment) among the intrinsically valuable states of affairs in the world that should be promoted. Such views are discussed in Michael Moore, Placing Blame: A General Theory of Criminal Law 155-59 (1997) [hereinafter Moore, Placing Blame], and in Michael T. Cahill, Retributive Justice in the Real World, 85 Wash. U. L. Rev. 815, 833-36 (2007).
94. We also ought not recklessly inflict such distress, though I can make my argument without appeal to mental states other than knowledge and purposefulness.
95. Defenders of a purely objective account of punishment severity may argue that certain amounts of fear and anxiety interfere with inmates' cognitive liberties. Thus, they might claim, when the water supply induces mental illness, they can account for the blameworthiness of Sadistic Warden's conduct as an unwarranted deprivation of liberty. Yet, such an account of punishment is no longer purely objective. If the account of punishment severity treats Sensitive and Insensitive differently, then it at least partly recognizes my claim that subjective experience matters. Moreover, one cannot easily limit infringements of cognitive liberty to cases of mental illness. Doing so affords no explanation of why cognitive liberties function in a binary manner, such that they are not infringed at all until a prisoner's distress reaches the critical, yet often arbitrary, point at which we call distress a symptom of mental illness. More troublingly, the limitation to mental illness implies that Sadistic Warden can impose fear and anxiety willy-nilly so long as inmate distress teeters just short of mental illness.
96. The claim made here applies quite generally. So, for example, in order to justify a harsh interrogation tactic, the justification must take account of the physical or emotional distress associated with its use on particular individuals of varying fortitude.
97. Ryberg, supra note 1, at 105.
98. See, e.g., John Kleinig, Punishment and Desert 67 (1973) ("The principle that the wrongdoer deserves to suffer seems to accord with our deepest intuitions concerning justice.");
99. cf. A.M. Quinton, On Punishment, 14 Analysis 133, 136-37 (1954) (stating that punishment is "infliction of suffering on the guilty"). John Rawls describes retributivists as holding that: It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing. That a criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of his act. The state of affairs where a wrongdoer suffers punishment is morally better than the state of affairs where he does not; and it is better irrespective of any of the consequences of punishing him.
100. John Rawls, Two Concepts of Rules, 64 Phil. Rev. 3, 4-5 (1955). Some retributivists focus on deserved suffering, while others focus on deserved punishment.
101. Compare Leo Zaibert, Punishment and Retribution 214 (2006) ("To be a retributivist is to recognize that deserved punishment is an intrinsic good." (emphasis added)),
102. with Douglas N. Husak, Retribution in Criminal Theory, 37 San Diego L. Rev. 959, 972 (2000) ("[R]etributive beliefs only require that culpable wrongdoers be given their just deserts by being made to suffer (or to receive a hardship or deprivation). These beliefs do not require that culpable wrongdoers be given their just deserts by being made to suffer by the state through the imposition of punishment").
103. See Moore, Placing Blame, supra note 43, at 78-79 ("Of the possible functions for criminal law, only the achievement of retributive justice is its actual function. Punishing those who deserve it is good and is the distinctive good that gives the essence, and defines the borders, of criminal law as an area of law.").
104. See Ryberg, supra note 1, at 5 ("Sometimes proportionalism is even presented as a necessary condition for the classification of a theory as retributivist.");
105. see also id. at 2-4 (noting that many criminal justice systems have adopted proportionate punishment as a central goal) ;
106. Husak, Already, supra note 1, at 83 ("A corollary of the 'just deserts' theory is the principle of proportionality, according to which the severity of a punishment should be a function of the seriousness of the offense."). Some theorists distinguish "mandatory" retributivists, who believe that we are required to punish in accordance with offenders' desert, from "permissive" retributivists, who believe that we are permitted but not required to punish in accordance with desert.
107. See John Braithwaite & Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice 34-35 (1990) (describing variety of ways in which retributivists might understand their obligations). Compare Herbert Fingarette, Punishment and Suffering, 50 Proe & Addresses Am. Phil. Ass'n 499, 499 (1977) ("I would like to expound a retributivist view of punishment - one that shows why the law must punish lawbreakers, must make them suffer, in a way fitting to the crime...."), with J. Angelo Corlett, Making Sense of Retributivism, 76 Philosophy 77, 78 (2001) ("[S]ometimes the guilty need not be punished at all, or may be punished at a level significantly lower than proportionality dictates.").
108. Retributivists vary over how we ought to determine the seriousness of an offense, Some focus exclusively on offenders' mental states related to culpability, while some also consider the outcomes of offenders' actions that are partly the result of good or bad luck. Some consider offenders' prior good or bad acts as relevant to desert, while others do not. These distinctions will not matter here, as I make claims about proportionality that apply no matter how blameworthiness is assessed.
109. According to Leo Katz, our judgments of criminal blameworthiness are objective in nature. See Katz, supra note 1, at 145-57.
110. For example, we punish the assault of a particular victim more harshly than the theft of his heirloom jewelry, even if this particular victim would rather be assaulted than have his heirlooms stolen. Id. at 145-50. If judgments of blameworthiness are objective, one may wonder whether our judgments of punishment severity should also be objective.
111. To be clear, however, judgments of blameworthiness depend primarily on determinations about beliefs and intentions of an offender, not the experiences of his victim. To the extent that judgments of distress matter at all to culpability, they matter because an offender may have beliefs about a victim's likely distress. More controversially, some theorists would also hold an offender liable for the distress he causes even when such distress outstrips his expectations. But either way, judgments of blameworthiness are fundamentally different from judgments of punishment severity. Thus, even if Katz is right about our judgments of blameworthiness, it does not follow automatically that punishment experience must be assessed in the same way. Furthermore, I am unconvinced that culpability judgments should be objectively understood. We often distinguish crimes or degrees of crimes based on the amount of experiential distress they are likely to cause. In fact, sentencing guidelines often provide a rather detailed calibration of blameworthiness that depends on the subjectively understood amount of harm the offender caused or some proxy for it. We may fail to make more refined assessments of subjective harms for reasons of practicality and not because of some fundamental feature of the concept of criminal blameworthiness. See Adam J. Kolber, The Comparative Nature of Punishment 45-46 (Sept. 29, 2008) (unpublished manuscript, on file with the Columbia Law Review), available at http://papers.ssrn.com/sol3/papers. cfm?abstract-id=1266158 [hereinafter Kolber, Comparative Nature].
112. See KG. Armstrong, The Retributivist Hits Back, 70 Mind 471, 478 (1961) (stating that, according to retributivists, "[p]unishment is the infliction of pain");
113. Nils Christie, Limits to Pain 5 (1981) ("[I]mposing punishment within the institution of law means the inflicting of pain, intended as pain,"). Christie elaborates: The receiving institutions do not like to be regarded or to regard themselves, as "pain-inflicting" institutions. Still, such a terminology would actually present a very precise message: punishment as administered by the penal law system is the conscious inflicting of pain. Those who are punished are supposed to suffer.... It is intended within penal institutions that those at the receiving end shall get something that makes them unhappy, something that hurts.
114. Christie, supra, at 16.
115. Permissive retributivists, who take the principle of proportionality to provide a cap on punishment, are subject to the equality concern but not the inconsistency concern. To avoid inconsistency, such retributivists need only be sure that Sensitive's experience of punishment is at or below the maximum level permitted by a principle of proportionality. Permissive retributivists, however, cannot account for our common intuition that more serious crimes should be punished more severely than less serious crimes, unless, as is typical, they subscribe to a hybrid theory of punishment that incorporates consequentialist reasons for calibrating punishment. I describe these consequentialist reasons infra Part II.C;
116. see also infra Part II.B.2.C on what I call "banded proportionality."
117. For example, a Saudi woman who was abducted and raped by seven men was recently sentenced to 200 lashes for violating Saudi Arabia's sex segregation laws by being with an unrelated male just prior to the abduction. Associated Press, Saudis Defend Punishment for Rape Victim, USATODAY.com, Nov. 21, 2007, at http://www.usatoday.com/news/world/2007-11-20-saudi-rape-N.htm (on file with the Columbia Law Review). She was subsequently pardoned by the Saudi king, presumably before the punishment was inflicted.
118. See Faiza Saleh Ambah, Saudi King Pardons Rape Victim Sentenced to 200 Lashes, Wash. Post, Dec. 18, 2007, at A8;
119. see also Leslie Kaufman, Parents Defend School's Use of Shock Therapy, N.Y. Times, Dec. 25, 2007, at Al (describing electric shock "therapy" used at Massachusetts school intended to help socialize students with severe mental and emotional disorders);
120. Lynda Polgreen, Nigeria Turns from Harsher Side of Islamic Law, N.Y. Times, Dec. 1, 2007, at Al (describing recent practices of stoning and amputation in Nigeria).
121. Compare Graeme Newman, Just and Painful 56-67 (2d ed. 1995)
122. (supporting use of electric shocks in lieu of incarcerative punishment), with David Garland, Punishment and Modern Society 241-47 (1990) (arguing that, despite some seemingly plausible arguments in favor of corporal punishment, such punishments violate modern sensibilities).
123. See supra note 13 and accompanying text (discussing variation in individuals' subjective experiences of involuntary fixed-calorie diet).
124. The line between corporal punishment and forms of punishment typically understood in terms of their liberty restrictions is illustratively blended in Weems v. United States, 217 U.S. 349 (1910). Weems was convicted of falsifying an official document and was sentenced by authorities in the Philippines to,
125. Id. at 364. The Supreme Court held that the punishment was disproportionate to the crime and therefore violated the Eighth Amendment's prohibition on cruel and unusual punishment.
126. Id. at 375-82. A number of commentators have focused their analysis of the case on the physical aspect of Weems's punishment.
127. See, e.g., Leonard P. Edwards, Corporal Punishment and the Legal System, 36 Santa Clara L. Rev. 983, 1017 & n.242 (1996). Yet, the wearing of chains is both a form of physical distress and a deprivation of liberty. Similarly, modern incarceration imposes both distress and deprivation, just less graphically than does the punishment of cadena temporal.
128. See Adam Liptak, In Prison for Life, He Turns M&M's into an Art Form, N.Y. Times, July 21, 2006, at Al (quoting prison artist Donny Johnson).
129. Of course, there may be difficult questions about how to compare and aggregate different kinds of suffering. For example, one inmate may find his surroundings emotionally distressful, while another finds the same surroundings distressful but also derives a sort of spiritual or higher-order pleasure out of his penance. Such cases may require experiential-suffering retributivists to flesh out more of the details of their theory. Cf. Steven Tudor, Accepting One's Punishment as Meaningful Suffering, 20 Law & Phil. 581, 589 (2001) ("In compassion and remorse as modes of meaningful suffering, the sufferings are 'in themselves' 'unwelcome', but no one who lucidly grasped their proper objects in experiencing such sufferings would simply wish the suffering be gone.").
130. See, e.g., Braithwaite & Pettit, supra note 50, at 37-40 (defending objective consequentialist account of punishment); Katz, supra note 1, at 155-56 (defending objective explanation of our retributive intuitions).
131. Rawls, supra note 48, at 10;
132. see also Robert P. George, Moralistic Liberalism and Legal Moralism, 88 Mich. L. Rev. 1415, 1426 (1990) (stating that, according to retributivists, "a criminal may justly be deprived of liberty commensurate with the liberty he wrongfully seized in breaking the law");
133. J.D. Mabbott, Professor Flew on Punishment, 30 Philosophy 256, 257 (1955) ("Most punishments nowadays are not afflictions of suffering, either physical or mental. They are the deprivation of a good.");
134. Andrew von Hirsch, Seriousness, Severity, and the Living Standard, in Principled Sentencing 185,189 (Andrew von Hirsch & Andrew Ashworth eds., 2d ed. 1998) (defending living-standard approach to severity assessments where " [p]enalties could be ranked according to the degree to which they typically affect the punished person's freedom of movement, earning ability, and so forth");
135. cf. Tudor, supra note 58, at 583 ("I take it to be uncontroversial that punishment, by definition, involves suffering (whether 'positively' through the imposition of something unpleasant or 'negatively' through the deprivation of something valued).").
136. In the context of the false imprisonment tort, there is virtually universal agreement that the plaintiff must have been aware of the restriction on his liberty in order to succeed. Restatement (Second) of Torts § 42 cmt. a (1964) ("Where... the plaintiff is not even subjected to the mental disturbance of being made aware of [the confinement] at the time, his mere dignitary interest in being free... is not of sufficient importance to justify the recovery....");
137. see also Note, A New Conception of Restraint in False Imprisonment, 68 U. Pa. L. Rev. 360, 361 (1920) ("[A person is not] restrained of his liberty... when... he is permitted to move in the direction in which he desires to go, though had he attempted to move in any other way he would have been prevented. There is... no restraint of liberty without submission of the will....").
138. But cf. W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 11, at 48 (5th ed. 1984) (suggesting that position of Restatement (Second) of Torts is "unduly restrictive," where, for example, a baby is locked in a bank vault and suffers physical illness or death as a result).
139. Prisoners with severe dementia may also be improper subjects for retributive incarceration. See S. Fazel, J. McMillan & I. O'Donnell, Dementia in Prison: Ethical and Legal Implications, 28 J. Med. Ethics 156, 157-58 (2002).
140. O. Henry, The Cop and the Anthem, in The Ransom of Red Chief and Other O. Henry Stories for Boys 143, 147-52 (Franklin J. Mathiews ed., 1928).
141. See Associated Press, Jobless Man Asks Judge for Jail Time, CNN.com, Oct. 12, 2006, at http://web.archive.org/web/20061029183540/http://www.cnn.com/2006/ LAW/10/12/robber.retirement.ap/index.html (on file with the Columbia Law Review);
142. Kristen Wyatt, Associated Press, Faced with Debt, Georgia Man Shot Postal Worker in Apparent Bid to Go to Prison, SignOnSanDiego.com, July 14, 2005, available at http:// www.signonsandiego.com/news/nation/20050714-1509- mailcarriershot.html (on file with the Columbia Law Review).
143. Former Assistant U.S. Attorney Stanley Alpert recounts the following comments by one of his captors during his 1998 kidnapping: " 'I don't care,' Sen continued musing. He was philosophical. 'Prison ain't so bad. The way I look at it, life is about living. You alive, you living, that's it. It don't matter much whether you're out here or inside, either way you are alive. Prison ain't shit.'" Stanley N. Alpert, The Birthday Party: A Memoir of Survival 60 (2007).
144. Wilson Ring, Associated Press, Mmm, Nutraloaf: Vermont Supreme Court to Decide if Highly Unpopular Prison Food Is Punishment, SignOnSanDiego.com, Mar. 22, 2008, available at http://www.signonsandiego.com/news/nation/20080322-1215- foodorpunishment.html (on file with the Columbia Law Review).
145. Andrew von Hirsch argues that the law "generally works with standard cases-and allows limited deviations for certain unusual situations." Andrew von Hirsch, Scaling Intermediate Punishments: A Comparison of Two Models, in Smart Sentencing: The Emergence of Intermediate Sanctions 211, 216 (James M. Byrne, Arthur J. Lurigio & Joan Petersilia eds., 1992). He is willing to deviate from "standard judgments [of desert] in special situations (say, of illness or advanced age) that give the penalty an uncharacteristic bite," but he refuses to do so more generally.
146. Id. As he offers no principled reason for limiting concerns about subjective experience to particular domains (like illness and advanced age), von Hirsch seems to be making a concession to pragmatic concerns about sentencing without challenging the underlying theoretical claim that punishment experience affects punishment severity.
147. For similar views, see Morris & Tonry, supra note 1, at 96 (arguing that accurately measuring suffering across individuals is so difficult that we ought to think of desert as limiting principle of punishment rather than method of "defining what is the single appropriate punishment");
148. Ashworth & Player, supra note 1, at 260 ("Pragmatically, differences of impact should only be taken into account if they are likely to be significantly outside the normal range of responses to a given sentence.").
149. See Kolber, Comparative Nature, supra note 51.
150. See id. at 27-33.
151. The obligation to measure subjective experience in comparative terms may seem to make the task even more difficult. While this may be so, it is also possible that many observable phenomena related to mental distress (e.g., certain symptoms of depression) are themselves manifestations, not of absolute levels of distress, but of changes from a person's baseline. If so, the task of comparatively measuring subjective distress may actually be easier than the task of measuring distress in absolute terms. See id. at 40.
152. Joel Feinberg, The Expressive Function of Punishment, 49 Monist 397, 403 (1965).
153. Those expressivists who consider themselves "communicativists" will surely agree with this claim. See, e.g., R.A. Duff, Punishment, Communication, and Community 79-80 (2001) ("[W]e should rather talk of [punishment's] communicative purpose: for communication involves, as expression need not, a reciprocal and rational engagement").
154. See, e.g., Jean Hampton, The Retributive Idea, in Forgiveness and Mercy 111, 130 (1988) (stating that retributivists should punish "even in a situation where neither the wrongdoer nor society will either listen to or believe the [condemnatory message]..., and where the victim doesn't need to hear (or will not believe) that message").
155. See supra note 6 and accompanying text.
156. See supra note 13 and accompanying text.
157. See Braithwaite & Pettit, supra note 50, at 48 (noting that "[o]nce retributivist thinkers begin to focus on... communication or denunciation... as the important achievement of the criminal justice system, it is not clear how they can avoid thinking of those features as values to be promoted" in a consequentialist fashion);
158. Moore, Placing Blame, supra note 43, at 90 (distinguishing retributivism from "denunciatory theories").
159. Cf. Morris & Tonry, supra note 1, at 101 (stating that even though public may fail to properly appreciate differences in experience of punishments of equal terms, "[p]erhaps it is the uninformed public who matter, not the judges and the criminals");
160. Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 592-93 (1996) (arguing that theorists ought to take seriously people's beliefs about expressive nature of different forms of punishments);
161. Dan M. Kahan, What's Really Wrong with Shaming Sanctions, 84 Tex. L. Rev. 2075, 2086 (2006) ("[C]itizens will expect punishments not only to express condemnation but also to express condemnation in a way that coheres with... their more basic cultural commitments.");
162. Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. Rev. 453, 456 (1997) (arguing that "desert-based liability... based upon the community's shared principles of justice" promotes law-abiding behavior and that there is consequentialist justification for criminal laws framed in retributive terms);
163. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175,1178 (1989) ("When a case is accorded a different disposition from an earlier one, it is important, if the system of justice is to be respected, not only that the later case be different, but that it be seen to be so.").
164. See Bukstel & Kilmann, supra note 2, at 487 (noting variation in offenders' psychological reactions to prison);
165. see also Adams, supra note 2, at 280 (same).
166. Cf. Dan Markel, Against Mercy, 88 Minn. L. Rev. 1421, 1465-66 (2004) (arguing that we ordinarily need not show mercy to defendants who are "ill, elderly, or dying" even though these conditions make prison unusually severe because offenders can or should anticipate risk of such suffering when they engage in criminal behavior).
167. See Jeremy A. Blumenthal, Law and the Emotions: The Problems of Affective Forecasting, 80 Ind. L.J. 155, 165-81 (2005) ("[P]eople are surprisingly inaccurate at predicting the intensity and duration of [future] emotions");
168. George Loewenstein & David Schkade, Wouldn't It Be Nice? Predicting Future Feelings, in Weil-Being: The Foundations of Hedonic Psychology 85, 86 (Daniel Kahneman et al. eds., 1999) (listing "situations in which people systematically mispredict their own future feelings").
169. See generally Daniel Gilbert, Stumbling on Happiness (2006) (discussing systematic errors in predictions of future emotional states).
170. See Larry Alexander, Consent, Punishment, and Proportionality, 15 Phil. & Pub. Aff. 178, 179 (1986) (arguing that it would violate principles of proportionality to deem particular sanction justified simply by virtue of fact that a person has voluntarily engaged in an offense while knowing applicable sanction).
171. Press Release, U.S. Sentencing Comm'n, U.S. Sentencing Commission Votes Unanimously to Apply Amendment Retroactively for Crack Cocaine Offenses (Dec. 11, 2007), available at http://www.ussc.gov/press/rell21107.htm (on file with the Columbia Law Review).
172. H.L.A. Hart, Punishment and Responsibility 4-5 (1968).
173. Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985);
174. see also Wilson v. Seiter, 501 U.S. 294, 300 (1991) (quotingDuckworth);
175. Alice Ristroph, State Intentions and the Law of Punishment, 98 J. Crim. L. & Criminology (forthcoming 2008) (manuscript at 31, on file with the Columbia Law Review) (stating that, in order to succeed in Eighth Amendment claim under 42 U.S.C. § 1983, "prisoner plaintiffs must show that prison officials acted with bad intentions - 'deliberate indifference' to grossly inadequate conditions or 'malicious and sadistic' intentions in using force").
176. See Ryberg, supra note 1, at 111-13 (arguing against limiting punishment to intended consequences).
177. See supra text accompanying notes 44-45.
178. As noted, if the knowing distribution of poisoned water is deemed to unacceptably violate prisoners' liberty interests, then one must explain why the knowing imposition of Sensitive's anxiety and distress is not also an unacceptable liberty violation.
179. See Michel Foucault, Discipline and Punish 10 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1975) ("Those who carry out the penalty tend to become an autonomous sector; justice is relieved of responsibility for it by a bureaucratic concealment of the penalty itself.") ;
180. Markus Dirk Dubber, The Pain of Punishment, 44 Buff. L. Rev. 545, 548-61 (1996) (describing historical developments in criminal justice systems to shelter those who impose sentences from observing or participating in delivery of punishment).
181. In this Essay, I leave aside discussion of capital punishment as there is substantial disagreement over how we ought to understand the disvalue of death. See Thomas Nagel, Death, in Mortal Questions 1, 1-10 (1979).
182. Occasionally, opponents of retributivism have charged retributivists with punishing the innocent because retributivists permit the undeserved suffering of inmates' family members. Cf. A.C. Ewing, The Morality of Punishment 43 (1929) ("[I]t is obvious that in most cases the punishment of an offender brings suffering on his family and those closely connected with him, though they are innocent of the offence in question.");
183. Russell L. Christopher, Deterring Retributivism: The Injustice of "Just" Punishment, 96 Nw. U. L. Rev. 843, 879-80 (2002) ("[I]nfliction of punishment on a guilty offender will most likely inflict pain and suffering on his or her friends and family who are innocent of the offense."). Retributivists might respond to the charge by claiming that the suffering of family members was not deliberate, These retributivists wish that the family members did not have to suffer, but alas, their pain was just a foreseen but unintended side effect, This response strikes me as inadequate, More importantly, it is even less convincing when the side-effect suffering that needs to be justified is experienced by inmates themselves - the very people who are supposed to get their just deserts in prison.
184. See supra notes 50, 53;
185. see also Ryberg, supra note 1, at 192 (describing "limiting proportionalism").
186. See, e.g., Norval Morris, Incapacitation Within Limits, in Principled Sentencing, supra note 60, at 107, 110 (defending "limiting retributivist" view that permits consequentialist punishment variation within retributively determined boundaries).
187. Hart, supra note 82, at 4 (emphasis added).
188. R.M. Hare, Essays on Philosophical Method 131 (1971).
189. See, e.g., Peter Railton, Alienation, Consequentialism, and the Demands of Morality, 13 Phil. & Pub. Aff. 134, 149 (1984) (identifying "happiness, knowledge, purposeful activity, autonomy, solidarity, respect, and beauty" as "intrinsically" valuable);
190. Thomas M. Scanlon, The Moral Basis of Interpersonal Comparisons, in Interpersonal Comparisons of Well-Being 17, 23 (Jon Elster & John E. Roemer eds., 1993) [hereinafter Scanlon, Moral Basis] (rejecting purely experiential account of value because character of our conscious states "is not the only thing of importance");
191. cf. Derek Parfit, Reasons and Persons 4 (1984) (noting that, even for objective theories of self-interest, "happiness and pleasure are at least part of what makes our lives go better for us, and misery and pain are at least part of what makes our lives go worse").
192. See, e.g., James Griffin, Well-Being: Its Meaning, Measurement and Moral Importance 7-8 (1986);
193. Will Kymlicka, Contemporary Political Philosophy 13 (2d ed. 2002).
194. See supra text accompanying notes 92-95.
195. Braithwaite and Pettit have used the term "preventionism" to describe the version of consequentialism common to the criminal law literature. See Braithwaite & Pettit, supra note 50, at 32. I will speak of consequentialism at a sufficient level of generality that the difference is unlikely to matter.
196. We typically increase the deterrent effect of incarceration by increasing sentence duration, though there is growing evidence that doing so has only a limited incremental deterrent effect. See John Darley & Adam Alter, Behavioral Issues of Punishment and Deterrence, in The Behavioral Foundations of Policy (Eldar Shafir ed., forthcoming 2008) (manuscript at 14-15, on file with the Columbia Law Review). On the other hand, there is increasing evidence that prison has a greater deterrent effect when the conditions of confinement are harsher.
197. See Lawrence Katz, Steven D. Levitt & Ellen Shustorovich, Prison Conditions, Capital Punishment, and Deterrence, 5 Am. L. & Econ. Rev. 318, 339-40 (2003). Examples in the text focus on the incremental deterrence of longer sentences but could easily be reframed in terms of the incremental deterrence of harsher conditions of confinement.
198. See Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 Geo. L.J. 949, 956-76 (2003) (detailing pervasiveness of deterrence-related arguments in criminal law and sentencing policies).
199. See supra note 79.
200. So, for example, if we can optimally deter borderline claustrophobes from dumping hazardous waste by setting a penalty of precisely two years of confinement and optimally deter everybody else by setting the penalty at precisely four years of confinement, cost-free punishment calibration allows us to optimally deter everyone. On the other hand, if we must set a single term of incarceration, say three and a half years, then by stipulation, we are no longer optimally deterring either group, assuming that the given optima are unique. (I also make the assumption that we cannot adjust the probability of detecting an offender's criminal conduct based on his likely future punishment experience. If we could, then we might have an additional method of fine-tuning deterrence.)
201. Adam Liptak, More Than 1 in 100 Adults Are Now in Prison in U.S., N.Y. Times, Feb. 29, 2008, at A14;
202. see also FIa. Dep't of Corr., 2005-2006 Annual Report: Budget Summary 21 (2006), available at http://www.dc.state.fl.us/pub/annual/0506/pdfs/budget.pdf (on file with the Columbia Law Review) (stating that it costs approximately $19,000 per year to house a Florida inmate in a "major institution");
203. James J. Stephan, U.S. Dep't of Justice, Bureau of Justice Statistics Special Report: State Prison Expenditures, 2001, at 1 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/spe01.pdf (on file with the Columbia Law Review) (stating that, in 2001, state prison operating expenditures per prison had national average of $22,650). Some estimates are much higher, depending presumably on what sorts of costs are included in the calculation.
204. See The Commonwealth of Mass. Governor's Comm'n on Corr. Reform, Strengthening Public Safety, Increasing Accountability, and Instituting Fiscal Responsibility in the Department of Correction 31 (2004), available at http://www.mass.gov/Eeops/docs/eops/GovCommission-Corrections-Reform.pdf (on file with the Columbia Law Review) (stating that it costs average of $43,000 per year to house a Massachusetts inmate).
205. As the Restatement (Second) of Torts states:
206. There is no direct correspondence between money and harm to the body, feelings or reputation.... There is no market price for a scar... since the damages are not measured by the amount for which one would be willing to suffer the harm. The discretion of the judge or jury determines the amount of recovery, the only standard being such an amount as a reasonable person would estimate as fair compensation.
207. Restatement (Second) of Torts § 912 cmt. b (1964). By contrast, workers' compensation programs often have rather specific pricing schedules that correspond to particular forms of injury or disability.
208. See, e.g., Federal Employees' Compensation Act, 5 U.S.C § 8107(c) (2006) (providing workers' compensation pricing schedule for federal employees, including 312 weeks' compensation for lost arm and 288 weeks' compensation for lost leg).
209. See, e.g., Kerman v. City of New York, 374 F.Sd 93, 125 (2d Cir. 2004) ("The plaintiff is entitled to compensation for loss of time, for physical discomfort or inconvenience, and for any resulting physical illness or injury to health.
210. Since the injury is in large part a mental one, the plaintiff is entitled to damages for mental suffering, humiliation, and the like.'" (quoting Keeton et al., supra note 61, at 48)).
211. Damages associated with wrongful convictions are often, though not always, calculated using objective measures. Compare Tex. Civ. Prac. & Rem. Code Ann. § 103.105 (Vernon 2004) (providing statutory redress to people convicted in error for expenses, lost wages, counseling, and child support payments up to $500,000), with Limone v. United States, 497 F. Supp. 2d 143, 234-49 (D. Mass. 2007) (engaging in detailed analysis of pre- and post-conviction lives of wrongfully imprisoned plaintiffs that "considerfs] the particular story of this case and these plaintiffs' suffering").
212. See, e.g., Thomas Hecker & Laurence Steinberg, Psychological Evaluation at Juvenile Court Disposition, 33 Prof. Psychol.: Res. & Prac. 300, 303 (2002).
213. Allen J. Beck & Laura M. Maruschak, U.S. Dep't of Justice, Mental Health Treatment in State Prisons, 2000, at 1 (2001), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtsp00.pdf (on file with the Columbia Law Review) ("Nearly 70% of facilities housing State prison inmates reported that, as a matter of policy, they screen inmates at intake; 65% conduct psychiatric assessments; 51% provide 24-hour mental health care; 71% provide therapy/counseling by trained mental health professionals; 73% distribute psychotropic medications to their inmates....").
214. See supra Part II.C.
215. See generally Michael Sharpe, Distinguishing Malingering from Psychiatric Disorders, in Malingering and Illness Deception 156 (Peter W. Halligan et al. eds., 2003) (discussing techniques to discover feigned psychiatric disorders).
216. See Video: A Clash of Cultures: Behind Bars, Security Trumps Treatment (Globe Spotlight Team, Boston Globe 2007), at http://link.brightcove.com/ services/link/bcpid1321280271/bclid1333278073/bctid1339217300 (noting that some prisoners intentionally swallow nails and spikes in order to be removed from general population of prisoners).
217. See Lisa Feldman Barrett & Tor D. Wager, The Structure of Emotion: Evidence from Neuroimaging Studies, 15 Current Directions Psychol. Sci. 79, 79 (2006) ("Neuroimaging techniques... have recently opened the door to searching directly for the circuitry that supports emotional processing in humans,");
218. Richard J. Davidson, Well-Being and Affective Style: Neural Substrates and Biobehavioural Correlates, 359 Phil. Transactions Royal Soc'y: Biological Sci. 1395, 1395 (2004) (describing our improved understanding of neurobiological correlates of emotional affect).
219. See, e.g., E.A. Moulton et al., Regional Intensive and Temporal Patterns of Functional MRI Activation Distinguishing Noxious and Innocuous Contact Heat, 93 J. Neurophysiology 2183, 2192 (2005).
220. Adam J. Kolber, Pain Detection and the Privacy of Subjective Experience, 33 Am, J.L. & Med. 433, 441-48 (2007).
221. See Sonia J. Lupien et al., Stress Hormones and Human Memory Function Across the Lifespan, 30 Psychoneuroendocrinology 225, 238 (2005) ("[C]hronic exposure to elevated levels of [hormones released when a person experiences stress] is related to both memory impairments and a smaller volume of the hippocampus.");
222. Yvette I. Sheline, Depression Duration but Not Age Predicts Hippocampal Volume Loss in Medically Healthy Women with Recurrent Major Depression, 19 J. Neuroscience 5034, 5039 (1999) (reporting "smaller hippocampal volumes in subjects with a history of depression").
223. See, e.g., Griffin, supra note 95, at 106-24;
224. Scanlon, Moral Basis, supra note 94, at 17.
225. For example, some countries have given appellate courts the power to reduce punishment severity but not to increase it. See S. White, Assessing the Severity of Sentences on Appeal, 36 Mod. L. Rev. 382, 382 (1973) (" [I] n varying a sentence on appeal the Court of Appeal is limited to passing a sentence... which does not exceed in severity the sentence... passed on the appellant at his trial.");
226. see also Criminal Appeal Act, 1968, e 19, §§ 4(3), 11(3) (Eng.), reprinted in 8 Halsbury's Statutes of England 687 (Sir Roland Burrows ed., 3d ed. 1969) ("The Court shall not... pass any sentence such that the appellant's sentence... will, in consequence of the appeal, be of greater severity than the sentence (taken as a whole) which was passed at the trial....");
227. Criminal Procedure Law, 5725-1965, § 197, 19 LSI 158, 182 (1965-65) (Isr.) ("The court shall not increase the penalty imposed on the accused except where the leniency of the sentence was appealed against.").
228. See Pierre Tremblay, On Penal Metrics, 4 J. Quantitative Criminology 225, 227-30 (1988).
229. Other studies examining perceptions of punishment severity include Robert E. Harlow, John M. Darley & Paul H. Robinson, The Severity of Intermediate Penal Sanctions: A Psychophysical Scaling Approach for Obtaining Community Perceptions, 11 J. Quantitative Criminology 71, 71 (1995);
230. Mara F. Schiff, Gauging the Intensity of Criminal Sanctions: Developing the Criminal Punishment Severity Scale (CPSS), 22 Crim. Just. Rev. 175, 175 (1997);
231. Leslie Sebba, Some Explorations in the Scaling of Penalties, 15 J. Res. Crime & Delinquency 247, 247 (1978).
232. Tremblay, supra note 116, at 229.
233. In fact, state and federal prison systems have experimented with bootcamp-style programs in which prisoners spend several months in particularly demanding "intensive confinement centers" in exchange for shorter sentences or more lenient treatment afterwards. See Jody Klein-Saffran, Bureau of Prisons: Expanding Intermediate Sanctions Through Intensive Confinement Centers 1-2, available at http://www.bop.gov/news/research-projects/published- reports/gen-program-eval/oreprbootcamp2.pdf (last visited Oct. 24, 2008) (on file with the Columbia Law Review);
234. Richard Willing, U.S. Prisons to End Boot-Camp Program, USA Today, Feb. 3, 2005, at 1A.
235. See George P. Fletcher, Rethinking Criminal Law 460-66 (1978) (describing debate and arguing against augmented punishments for recidivists).
236. See Shane Frederick & George Loewenstein, Hedonic Adaptation, in Weil-Being: The Foundations of Hedonic Psychology, supra note 79, at 302, 302-03.
237. Owen J. Flanagan, The Really Hard Problem: Meaning in a Material World 153 tbl.5.1 (2007) (citing empirical research on life satisfaction).
238. Frederick & Loewenstein, supra note 120, at 311-12. Research on hedonic adaptation suggests that, after a long enough period of time, prisoners' affective experiences may not be so different from what they would have been had they not been in prison. If subjective experience is a fundamental part of retributive suffering, then one ought to seriously question the value of long prison sentences to retributivists. While long sentences may be required to exact a certain quantum of suffering, long sentences are also an extraordinarily inefficient method of doing so. So much the worse, perhaps, for retributivism.
239. See Edward Zambie & Frank J. Porporino, Coping, Behavior, and Adaptation in Prison Inmates 101-02 (1988).
240. See Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev, 1523, 1523-25 (1984).
241. Some fines in the United States do appear to be at least roughly calibrated to offenders' punishment experiences. See Susan Turner & Judith Greene, The FARE Probation Experiment: Implementation and Outcomes of Day Fines for Felony Offenders in Maricopa County, 21 Just. Sys. J. 1, 6-9 (1999) (describing use of day fines in U.S. jurisdictions).
242. According to ancient Jewish law, offerings made to repent for sins were a function of the sinner's means. Leviticus 5:1-11.
243. See Andrew Ashworth, Sentencing and Criminal Justice 304-06 (4th ed. 2005).
244. Alan Cowell, Not in Finland Anymore? More Like Nokialand, N.Y. Times, Feb. 6, 2002, at A3.
245. See supra notes 50-51 and accompanying text.
246. See, e.g., Ashworth, supra note 127, at 306 (noting how politicians and media in United Kingdom presented unit fines as unfair by focusing on objective measures of punishment);
247. Piper, supra note 1, at 149 ("[M]edia reports would suggest that the public want to 'see' equality of treatment for offences which are of similar gravity and believe injustice has been done if an outcome 'looks' too lenient or too severe in comparison to known cases.").
248. Cf. supra note 76.
249. See supra text accompanying notes 75-77.
250. See, e.g., Johnson v. Phelan, 69 F.3d 144, 145, 151 (7th Cir. 1995) (dismissing prisoner's claim that his constitutional rights were violated by prison policies allowing female guards to see male prisoners naked "in their cells, the shower, and the toilet");
251. Mary Anne Case, All the World's the Men's Room, 74 U. Chi. L. Rev. 1655, 1660-62 (2007) (discussing/oAiwon);
252. Kate Murphy, After Enron, a Sunless Year in a Tiny Cell, N.Y. Times, June 20, 2004, § 3, at 5 (describing typical encroachments upon privacy of inmates);
253. see also Limone v. United States, 497 F. Supp. 2d 143, 235 (D. Mass. 2007) (noting that prisoners are strip searched after visits with relatives).
254. 134, The Ex Post Facto Clause of the U.S. Constitution prohibits legislatures from enacting a law that "makes more onerous the punishment for crimes committed before its enactment." Weaver v. Graham, 450 U.S. 24, 36 (1981).
255. The Supreme Court has "recognized that central to the ex post facto prohibition is a concern for 'the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.'" Miller v. Florida, 482 U.S. 423, 430 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 30 (1981));
256. see also Paul H. Robinson, Fair Notice and Fair Adjudication: Two Kinds of Legality, 154 U. Pa. L. Rev. 335, 336 (2005) ("[C]riminal liability and punishment can be based only upon a prior legislative enactment of a prohibition that is expressed with adequate precision and clarity.").
257. There are some tricky issues raised by the conversion of disutiles into objective terms like sentence duration and confinement conditions. For example, disutiles can be experienced: (1) intensely and quickly or (2) less intensely but over a longer period. Perhaps, when disutiles are properly understood, people will be indifferent between these possibilities, though I take no position on the matter here.
258. Our requirements are sufficiently modest that an offender need not have had actual knowledge of the sentencing range associated with his offense, and most offenders probably had little or no such knowledge. Cf. McBoyle v. United States, 283 U.S. 25, 27 (1931) ("Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand....").
259. Husak, Already, supra note 1, at 82.
260. Andrew von Hirsch, Comm. for the Study of Incarceration, Doing Justice: The Choice of Punishments 90 (1976).
261. 18 U.S.C. § 3621(b) (2006).
262. See generally Symposium on Pay-to-Stay Programs in Correctional Facilities, 106 Mich. L. Rev. First Impressions 55 (2007), at http://www.michiganlawreview.org/firstimpressions/vol106/paytostay.pdf (on file with the Columbia Law Review) (collecting articles on the topic).
263. See John R. Lott, Jr., Do We Punish High Income Criminals Too Heavily?, 30 Econ. Inquiry 583, 584 (1992) (arguing that wealthy people may be overpunished relative to less wealthy people because the wealthy have dramatically reduced postconviction earning potential);
264. cf. Richard A. Posner, Optimal Sentences for White Collar Criminals, 17 Am. Crim. L. Rev. 409, 415 (1979) ("Since the disutility of imprisonment rises with income, this form of punishment will deter the rich man more than the poor one. Stated differently, a nominally uniform prison term has the effect of price discrimination based on income.").
265. Nevertheless, these two explanations - that Hoity-Toity has augmented blameworthiness and better legal representation - cannot fully explain common lay intuitions. Many people have the intuition that Hoity-Toity and Insensitive should spend precisely the same amount of time in prison. Yet, it would be very coincidental if Hoity-Toity's augmented blameworthiness or better access to legal representation make him deserve augmented experiential distress that ends up giving him his just deserts when he serves the same term as Insensitive. To see why, suppose that Super-Hoity-Toity is even richer than Hoity-Toity and is therefore more blameworthy and has even better legal representation. Yet, it is very difficult to explain the intuition that many people have that Insensitive, Hoity-Toity, and Super-Hoity-Toity should all spend exactly the same amount of time in prison when they commit crimes of equal blameworthiness.
266. This sort of reasoning is évident in United States v. Bergman, where Rabbi Bergman argued for leniency at sentencing on the ground that he had already been punished enough by hostile publicity before and after he was indicted:
267. Defendant's notoriety should not in the last analysis serve to lighten, any more than it may be permitted to aggravate, his sentence. The fact that he has been pilloried by journalists is essentially a consequence of the prestige and privileges he enjoyed before he was exposed as a wrongdoer. The long fall from grace was possible only because of the height he had reached. The suffering from loss of public esteem reflects a body of opinion that the esteem had been, in at least some measure, wrongly bestowed and enjoyed.
268. F. Supp. 496, 502-03 (S.D.N.Y. 1976).
269. When we distribute valuable resources like money, bodily organs, and lifeboats, some have argued that we ought not use purely subjective criteria in assessing just distribution. The claims that others make on us, according to this view, are limited by objective considerations about the reasons supporting their claims. In particular, we need not accommodate people's "expensive tastes." See T.M. Scanlon, Preference and Urgency, 72 J. Phil. 655, 659 (1975) [hereinafter Scanlon, Preference];
270. see also Katz, supra note 1, at 155-56;
271. Ronald Dworkin, What Is Equality? Part 1: Equality of Welfare, 10 Phil. & Pub. Aff. 185, 186 (1981). So, for example, according to Thomas Scanlon, "[t]he fact that someone would be willing to forego a decent diet in order to build a monument to his god does not mean that his claim on others for aid in his project has the same strength as a claim for aid obtaining enough to eat." Scanlon, Preference, supra, at 659-60. Similarly, if we seek to distribute valuable resources equally to Hoity-Toity and Insensitive, so the argument goes, we need not buy Hoity-Toity a bottle of fine wine when we buy Insensitive a bottle of root beer, even if we would have to give Hoity-Toity the wine in order for both of them to obtain the same improvement in well-being. Yet, if we do not accommodate "expensive tastes" when distributing valuable resources, why should we accommodate them when distributing punishment resources?
272. Until the argument is fleshed out in more detail, it is difficult to adequately respond to it. There is no immediate connection between the policies that guide us when distributing goods that people want and the policies that guide us when distributing punishment. I will, however, offer a few brief considerations: First, one may challenge the force of the "expensive tastes" argument even in its traditional context. One may think that equality of distribution should be understood on grounds of subjective welfare, acknowledging that we may then depart from equality so understood for certain consequentialist reasons (e.g., we want to discourage people from developing expensive tastes). Second, as an empirical matter, the "expensive tastes" offenders develop outside of prison are generally very inexpensive tastes from the perspective of criminal justice. The people who are most expensive to deter are those who find prison least objectionable. Third, at most, the expensive tastes response could lead us to discount some subjective distress (perhaps where we are partly responsible for the development of that distress), but it does not, by itself, relieve us of the obligation to calibrate distress in general.
273. More calibrated punishments do not necessarily benefit wealthy people. In the case of fines, a switch to subjectively calibrated proportional punishments would be more demanding, in dollar terms, of higher-wealth offenders than lower-wealth offenders. See Husak, Already, supra note 1, at 93.