Happiness and punishment

University of Chicago Law Review

Volumn 76, Issue 3, 2009, Pages 1037-1081

  Bronsteen, John ^a   Buccafusco, Christopher ^b   Masur, Jonathan ^c  

^a LOYOLA UNIVERSITY   (United States)

^b CHICAGO KENT COLLEGE OF LAW   (United States)

^c UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

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EID: 71849090367     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (302)

1. Herbert Morris, Concluding Remarks: The Future of Punishment, 46 UCLA L Rev 1927, 1930 (1999).
2. See John Bronsteen, Christopher Buccafusco, and Jonathan Masur, Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 Colum L Rev 1516,1536-1538 (2008) (arguing that hedonic adaptation increases the probability of pretrial settlement by lowering a tort plaintiffs acceptable settlement price).
3. We employ the feminine pronoun here because it is our preferred convention, despite the fact that the vast majority of prisoners are male and the behavioral studies we discuss employed only male subjects.
4. See Adam Kolber, The Subjective Experience of Punishment, 109 Colum L Rev 182,196 (2009).
5. See Daniel Kahneman, Ed Diener, and Norbert Schwarz, Preface, in Daniel Kahneman, Ed Diener, and Norbert Schwarz, eds, Well-being: The Foundations of Hedonic Psychology ix (Russell Sage 1999) (presenting a new field within psychology, "the study of what makes experiences and life pleasant or unpleasant," which the authors christen "hedonic psychology").
6. For a review of the extensive literature on happiness and hedonics, see Sonja Lyubomirsky, Kennon M. Sheldon, and David Schkade, Pursuing Happiness: The Architecture of Sustainable Change, 9 Rev Gen Psych 111, 112 (2005). Hedonic psychology has also had a substantial impact on American popular culture.
7. See generally, for example, Malcolm Gladwell, Blink: The Power of Thinking without Thinking (Little, Brown 2005);
8. Daniel Gilbert, Stumbling on Happiness (Knopf 2006);
9. Jonathan Haidt, The Happiness Hypothesis: Finding Modern Truth in Ancient Wisdom (Basic Books 2006).
10. Timothy D. Wilson, et al, Focalism: A Source of Durability Bias in Affective Forecasting, 78 J Personality & Soc Psych 821, 833 (2000).'
11. See Daniel T. Gilbert, et al, Immune Neglect: A Source of Durability Bias in Affective Forecasting, 75 J Personality & Soc Psych 617, 629 (1998).
12. See C. Lundqvist, et al, Spinal Cord Injuries: Clinical, Functional, and Emotional Status, 16 Spine 78,81 (1991) (finding that patients with traumatic spinal cord injuries showed improvement in mood that was "obvious after 2 years and continuously better later").
13. Although we focus on fines and imprisonment, our arguments are certainly relevant to debates about less traditional forms of punishment, including shaming. See, for example, Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U Chi L Rev 591,594 (1996).
14. For brevity's sake, we also do not discuss certain punishments that are traditionally viewed as less severe than fines, such as probation and community service. For a discussion of these punishments, see Norval Morris and Michael Tonry, Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System 6-7 (Oxford 1990).
15. Philip Brickman, Dan Coates, and Ronnie Janoff-Bulman, Lottery Winners and Accident Victims: Is Happiness Relative?, 36 J Personality & Soc Psych 917,920-921 (1978).
16. Philip Brickman and Donald T. Campbell, Hedonic Relativism and Planning the Good Society, in M.H. Appley, ed, Adaptation-level Theory:A Symposium 287,289 (Academic 1971).
17. See Daniel Kahneman, Objective Happiness, in Kahneman, Diener, and Schwarz, eds, Well-being 15-22 (cited in note 5) (challenging the traditional economic understanding that changes in wealth represent permanent changes in utility because an accurate estimation of utility requires a study of utility's duration);
18. Richard A. Easterlin, Explaining Happiness, 100 Proceedings Natl Academy Sci 11176,11176 (2003) (questioning, based upon empirical observations from happiness surveys, the common economic assumption that overall well-being moves in tandem with changes in income).
19. For an early review, see Shane Frederick and George Loewenstein, Hedonic Adaptation, in Kahneman, Diener, and Schwarz, eds, Well-being at 302,312 (cited in note 5).
20. See Easterlin, 100 Proceedings Natl Acad Sci at 11176,11182 (cited in note 13) ("An increase in income... does not bring with it a lasting increase in happiness because of the negative effect on utility of hedonic adaptation and social comparison.").
21. See Gilbert, et al, 75 J Personality & Soc Psych at 624 (cited in note 8) (reporting results suggesting that "the outcome of a tenure decision did not have a dramatic and robust influence on the general happiness of experiencers," despite the subjects' predictions that, at least in the short term, it would).
22. See Andrew J. Oswald and Nattavudh Powdthavee, Does Happiness Adapt? A Longitudinal Study of Disability with Implications for Economists and Judges, 92 J Pub Econ 1061, 1070 (2008) (finding that individuals who become disabled can experience some hedonic adaptation, though it is incomplete for those with severe disability).
23. Gilbert, et al, 75 J Personality & Soc Psych at 618 (cited in note 8).
24. For a review of these studies and their implications for legal settlement, see Bronsteen, Buccafusco, and Masur, 108 Colum L Rev at 1527-1531, 1541 (cited in note 2).
25. See Lundqvist, et al, 16 Spine at 80 (cited in note 9).
26. See David R. Patterson, et al, Psychological Effects of Severe Burn Injuries, 113 Psych Bull 362,370,375 (1993).
27. See Norman F. Boyd, et al, Whose Utilities for Decision Analysis?, 10 Med Dec Making 58, 65-66 (1990) (finding that patients who had colostomies reported higher utility scores for life with a colostomy than either rectal cancer patients without colostomies or healthy volunteers who were asked to imagine life with a colostomy).
28. See Jason Riis, et al, Ignorance of Hedonic Adaptation to Hemodialysis: A Study Using Ecological Momentary Assessment, 134 J Exp Psych: General 3, 6 (2005).
29. See Oswald and Powdthavee, 92 J Pub Econ at 1066, 1070 (cited in note 17). As a group, people who became disabled reported an average well-being score of 4.8 out of 7 for the two years preceding disability, an abrupt fall to 3.7 at the onset of disability, and then a subsequent rebound to 4.1 in the next two years despite the fact that the disabilities themselves had not changed. Separating the moderately and severely disabled groups, the authors found approximately 50 percent adaptation to moderate disability and 30 percent adaptation to severe disability. Thus, there is substantial evidence that hedonic adaptation to disability (even if incomplete) is significant.
30. See id.
31. Gilbert, et al, 75 J Personality & Soc Psych at 619 (cited in note 8) ("Ego defense, rationalization, dissonance reduction, motivated reasoning, positive illusions, self-serving attribution, self-deception, self-enhancement, self-affirmation, and self-justification are just some of the terms that psychologists have used to describe the various strategies, mechanisms, tactics, and maneuvers of the psychological immune system.").
32. Similarly, Daniel Kahneman and Richard Thaler note that a subject's attention is normally directed toward novelty, including changes in response to disability. Therefore, "as the new state loses its novelty it ceases to be the exclusive focus of attention, and other aspects of life again evoke their varying hedonic responses."
33. Daniel Kahneman and Richard H. Thaler, Anomalies: Utility Maximization and Experienced Utility, 20 J Econ Perspectives 221, 230 (2006). These coping strategies are evolutionarily adaptive, allowing people to recover quickly from considerable misfortune.
34. See id.
35. See Heidi Lepper, Use of Other-reports to Validate Subjective Well-being Measures, 44 Soc Indicators Res 367,377 (1998);
36. Ed Sandvik, Ed Diener, and Larry Seidlitz, Subjective Wellbeing: The Convergence and Stability of Self-report and Non-self-report Measures, 61 J Personality 317, 337 (1993).
37. Tiffany A. Ito and John T. Cacioppo, The Psychophysiology of Utility Appraisals, in Kahneman, Diener, and Schwarz, eds, Well-being at 479-480 (cited in note 5).
38. Id at 476
39. (presenting research demonstrating that self-reported reactions to stimuli correlate with anterior cortical activity). See generally T.G. Dinan, Glucocorticoids and the Genesis of Depressive Illness: A Psychobiological Model, 164 Brit J Psychiatry 365 (1994).
40. In addition, it is difficult to draw strong conclusions regarding the size of any reported gain in subjective well-being. If respondents' self-assessments are not perfectly linear, a person who reports her level of well-being as a "4" on a scale of 0 to 7 may not be twice as well off as a person who reports her well-being as a "2." Matthew Adler and Eric A. Posner, Happiness Research and Cost-benefit Analysis, 37 J Leg Stud 253, 280-81 (2008).
41. Still, these gains are not random (or zero); these interpretive difficulties do not obscure the fact that some degree of meaningful adaptation is almost certainly taking place. Indeed, the reported gains to well-being could just as easily be larger than a linear approach would indicate, rather than smaller. Truly idiosyncratic reporting should also wash out across large sample populations. See Rafael di Tella and Robert MacCulloch, Some Uses of Happiness Data in Economics, 20 J Econ Persp 25,29 (2006).
42. See Frederick and Loewenstein, Hedonic Adaptation at 319 (cited in note 14) (concluding, after reviewing the literature on hedonic adaptation, that in certain environments adaptation is not the norm).
43. See Neil D. Weinstein, Community Noise Problems: Evidence against Adaptation, 2 J Envir Psych 87, 94 (1992).
44. See Victoria Guitera, et al, Quality of Life in Chronic Daily Headache: A Study in a General Population, 58 Neurology 1062,1064 (2002).
45. See Craig A. Smith and Kenneth A. Wallston, Adaptation in Patients with Chronic Rheumatoid Arthritis: Application of a General Model, 11 Health Psych 151, 158-159 (1992).
46. See Richard F. Antonak and Hanoch Livneh, Psychosocial Adaptation to Disability and Its Investigation among Persons with Multiple Sclerosis, 40 Soc Sci & Med 1099,1103 (1995).
47. See Ron D. Hays, et al, Health-related Quality of Life in Patients with Human Immunodeficiency Virus Infection in the United States: Results from the HIV Cost and Services Utilization Study, 108 Am J Med 714,718 (2000).
48. See Judith I. Tsui, et al, The Impact of Chronic Hepatitis C on Health-related Quality of Life in Homeless and Marginally Housed Individuals with HIV, 11 AIDS & Behav 603,609 (2007).
49. See Richard E. Lucas, Time Does Not Heal All Wounds: A Longitudinal Study of Reaction and Adaptation to Divorce, 16 Psych Sci 945, 948 (2005).
50. See Richard E. Lucas, et al, Reexamining Adaptation and the Set Point Model of Happiness: Reactions to Changes in Marital Status, 84 J Personality & Soc Psych 527, 535 (2003) ("[N]ot everyone experiences adaptation; many respondents report stable or even decreasing levels of satisfaction for many years following the loss of a spouse.").
51. See Richard E. Lucas, et al, Unemployment Alters the Set Point for Life Satisfaction, 15 Psych Sci 8,11 (2004) ("People were less satisfied in the years following unemployment, and this decline occurred even though individuals eventually regained employment.").
52. See Timothy D. Wilson and Daniel T. Gilbert, Affective Forecasting: Knowing What to Want, 14 Current Directions Psych Sci 131, 131-132 (2005) (identifying focalism, "the tendency to overestimate how much we will think about the event in the future," as one cause for the error).
53. See Peter A. Ubel, George Loewenstein, and Christopher Jepson, Disability and Sunshine: Can Hedonic Predictions Be Improved by Drawing Attention to Focusing Illusions or Emotional Adaptation?, 11 J Exp Psych: Applied 111, 111 (2005).
54. See Daniel T. Gilbert and Timothy D. Wilson, Prospection: Experiencing the Future, Science 1351,1352 (Sept 7, 2007);
55. Wilson, et al, 78 J Personality & Soc Psych at 822 (cited in note 7) ("Research on subjective well-being suggests that people's attention turns quickly to their current concerns, reducing the impact of past events on their happiness.").
56. See Peter Ayton, Alice Pott, and Najat Elwakili, Affective Forecasting: Why Can't People Predict Their Emotions?, 13 Thinking & Reasoning 62, 64-66 (2007).
57. See generally id.
58. Deborah A. Kermer, et al, Loss Aversion Is an Affective Forecasting Error, 17 Psych Sci 649, 652 (2006).
59. See Daniel T. Gilbert, Jay Meyers, and Timothy D. Wilson, Lessons from the Past: Do People Learn from Experience That Emotional Reactions Are Short-lived?, 27 Personality & Soc Psych Bull 1648,1649 (2001),
60. citing Sven-Ȧke Christianson and Martin A. Safer, Emotional Events in Autobiographical Memory, in David C. Rubin, ed, Remembering Our Past: Studies in Autobiographical Memory 235 (Cambridge 1996) ("There are apparently no published studies in which a group of subjects has accurately recalled the intensity and/or frequency of their previously recorded emotions").
61. See Richard A. Easterlin, Does Economic Growth Improve the Human Lot? Some Empirical Evidence, in Paul A. David and Melvin W. Reder, eds, Nations and Households in Economic Growth 89, 118 (Academic 1974) (studying nineteen countries and concluding that while there is a correlation between citizens' income and happiness within a single country, no such correlation exists when the national happiness levels of rich and poor countries are compared). The Easterlin paradox has since been called into serious question, but evidence that income has only a very small effect on happiness now appears more robust than ever.
62. See Betsey Stevenson and Justin Wolfers, Economic Growth and Subjective Well-being: Reassessing the Easterlin Paradox, 1 Brookings Papers on Econ Activity 1 (2008) (finding a link between the average subjective wellbeing and per capita GDP across countries).
63. For a review of the extensive literature, see generally Ed Diener and Robert BiswasDiener, Will Money Increase Subjective Well-being? A Literature Review and Guide to Needed Research, 57 Soc Indicators Rsrch 119 (2002).
64. See Easterlin, 100 Proceedings Natl Acad Sci at 11180 (cited in note 13) (explaining that "material aspirations increase commensurately with income").
65. See Diener and Biswas-Diener, 57 Soc Indicators Rsrch at 147 (cited in note 48) ("[S]ocial comparison... had a direct effect on satisfaction").
66. It is worth pointing out that hedonic adaptation to losses may not be identical to adaptation to gains. Research from the field of behavioral decision theory has repeatedly shown that losses loom larger psychologically than do gains. See Daniel Kahneman and Amos Tversky, Prospect Theory: An Analysis of Decision under Risk, 47 Econometrica 263, 279 (1979) (indicating that the value function is "steeper for losses than for gains"). Indeed, losses trigger stronger neural activity than do gains.
67. See generally Roy F. Baumeister, et al, Bad Is Stronger Than Good, 5 Rev Gen Psych 323 (2001) ("Bad emotions, bad parents, and bad feedback have more impact than good ones, and bad information is processed more thoroughly than good.");
68. John T. Cacioppo and Gary G. Berntson, Relationship between Attitudes and Evaluative Space: A Critical Review, with Emphasis on the Separability of Positive and Negative Substrates, 115 Psych Bull 401 (1994) (proposing that the evaluative processes by which humans discriminate positive from negative environments are not activated reciprocally).
69. Ed Diener, et al, The Relationship between Income and Subjective Well-being: Relative or Absolute?, 28 Soc Indicators Rsrch 195, 221 (1993).
70. Id at 209.
71. See Kermer, et al, 17 Psych Sei at 651 (cited in note 45) (reporting that participants' expectations that losing $3 would have a greater impact than gaining $5 were found to be wrong).
72. See id at 652.
73. Francis T. Cullen, Bonnie S. Fisher, and Brandon K. Applegate, Public Opinion about Punishment and Corrections, 27 Crime & Just 1, 2, 8-9 (2000) (explaining the increasing popularity of prisons as a reflection of public sentiment that is at once punitive and progressive).
74. See Donald Clemmer, The Prison Community 299-300 (Christopher 1940) (introducing prisonization as the adoption of the "folkways, mores, customs, and general culture of the penitentiary" that "breed or deepen criminality and antisociality").
75. See Frederick and Loewenstein, Hedonic Adaptation at 311 (cited in note 14) ("Although incarceration is designed to be unpleasant, most of the research on adjustment to prison life points to considerable adaptation following a difficult initial adjustment period."). For an early review of the literature,
76. see Lee H. Bukstel and Peter R. Kilmann, Psychological Effects of Imprisonment on Confined Individuals, 88 Psych Bull 469, 487 (1980) (finding no support for "the popular notion that correctional confinement is harmful to most individuals").
77. See Edward Zamble, Behavior and Adaptation in Long-term Prison Inmates: Descriptive Longitudinal Results, 19 Crim Just & Behav 409, 420-21 (1992) (finding evidence of prisoners' improved adaptation including considerable decreases over time of stress, stress-related medical problems, and the number of disciplinary incidents);
78. Edward Zamble and Frank Porporino, Coping, Imprisonment, and Rehabilitation: Some Data and Their Implications, 17 Crim Just & Behav 53, 67 (1990) (finding that treatment programs to help prisoners cope would be most effective at the very beginning or the very end of the prison term);
79. Edward Zamble and Frank J. Porporino, Coping, Behavior, and Adaptation in Prison Inmates 116-20 (Springer-Verlag 1988) (conducting a longitudinal study of prisoner adaptation and concluding that prisoners' initial emotional trauma subsided through the year-long study term);
80. Doris Layton MacKenzie and Lynne Goodstein, Long-term Incarceration Impacts and Characteristics of Long-term Offenders: An Empirical Analysis, 12 Crim Just & Behav 395, 409 (1985) (presenting evidence that inmates in the first three years of long prison terms experienced more stress than those who had served at least six years in prison);
81. Timothy J. Flanagan, The Pains of Long-term Imprisonment: A Comparison of British and American Perspectives, 20 Brit J Criminol 148, 155 (1980) (finding that over time, most inmates "do not report that imprisonment has seriously threatened their well-being").
82. Consider also Mandeep K. Dhami, Peter Ayton, and George Loewenstein, Adaptation to Imprisonment: Indigenous or Imported?, 34 Crim Just & Behav 1085,1096 (2007) (finding that prisoners participated in more programs as they spent more time in prison).
83. See MacKenzie and Goodstein, 12 Crim Just & Behav at 405 (cited in note 59) ("On average, [the early long-term offenders] had served 1.3 years in prison and were serving sentences requiring 12.1 years in prison. The [late long-term offenders] had served an average of 10.3 years in prison and were serving sentences with an average length of 15.7 years.").
84. Id at 406-407
85. Id at 409.
86. See, for example, Zamble, 19 Crim Just & Behav at 420-21 (cited in note 59);
87. Zamble and Porporino, Coping Behavior, and Adaptation in Prison Inmates at 19,116-120 (cited in note 59).
88. See also Dhami, Ayton, and Loewenstein, 34 Crim Just & Behav at 1097 (cited in note 59) ("Ideally, adaptations should be studied longitudinally, but this can be difficult in practice.").
89. See Zamble and Porporino, 17 Crim Just & Behav at 64 (cited in note 59) (finding, for example, that a majority of subjects reported suffering from some form of depression or anxiety).
90. See id (finding that although a majority of subjects exhibited emotional distress at the beginning of the prison term, the number of prisoners who were depressed or highly anxious fell by nearly one-third just three months later);
91. Zamble and Porporino, Coping, Behavior, and Adaptation in Prison Inmates at 109 (cited in note 59).
92. See Zamble and Porporino, 17 Crim Just & Behav at 64 (cited in note 59).
93. We believe that subjective reports of positive and negative affect provide the best available proxy for measuring well-being. See generally John Bronsteen, Christopher Buccafusco, and Jonathan Masur, Welfare as Happiness (University of Chicago Olin Working Paper No 468, May 2009), online at http://ssrn.com/abstract=1397843 (visited Sept 1, 2009). Nonetheless, broader measures of an inmate's quality of life can be useful, and here we are in accord with the psychological findings on affect. In the longitudinal extension of Zamble and Porporino's earlier study, inmates' reports of their quality of life rose from 32.2 to 42.0 on a 100-point scale. Although these findings are not statistically significant at the 10 percent level, they offer some additional evidence of adaptation to imprisonment.
94. See id. In addition, it is worth mentioning that some of these cognitive improvements may have been related to equivalent improvements in the inmates' objective conditions.
95. See id.
96. As early as the sixteenth century, Thomas More recognized prison's limited impact on his own well-being, writing from his cell to his wife: "[I]s not this house as nigh heaven as mine own?" Anthony Kenny and Charles Kenny, Life, Liberty, and the Pursuit of Utility: Happiness in Philosophical and Economic Thought 59-60 (Imprint Academic 2006) (quoting a letter from Thomas More to his wife).
97. There is, however, some evidence that the final few weeks of the sentence prove stressful and thus decrease well-being. See Bukstel and Kilmann, 88 Psych Bull at 488 (cited in note 58) ("The typical pattern among these individuals might involve an initial adjustment reaction to incarceration, followed by a period of successful adjustment with another mild psychological reaction (e.g., 'short-timer's syndrome') occurring just prior to release.").
98. See Gresham M. Sykes, The Society of Captives: A Study of a Maximum Security Prison 63-83 (Princeton 1958) (examining the prison system from the prisoner's perspective with respect to loss of liberty, goods and services, heterosexual relationships, autonomy, and security).
99. See Jason Schnittker and Andrea John, Enduring Stigma: The Long-term Effects of Incarceration on Health, 48 J Health & Soc Behav 115, 117 (2007).
100. Id.
101. See generally Michael Massoglia, Incarceration, Health, and Racial Disparities in Health, 42 L & Socy Rev 275 (2008);
102. Michael Massoglia, Incarceration as Exposure: The Prison, Infectious Disease, and Other Stress-related Illnesses, 49 J Health & Soc Behav 56 (2008);
103. Schnittker and John, 48 J Health & Soc Behav at 117 (cited in note 71);
104. Bruce Western, Punishment and Inequality in America (Russell Sage 2006) (tracking employment prospects and wage growth of exinmates);
105. Leonard M. Lopoo and Bruce Western, Incarceration and the Formation and Stability of Marital Unions, 67 J Marriage & Fam 721 (2005) (finding that "the prevalence of marriage would change little if incarceration dates were reduced"). In the descriptions of these studies, it should be assumed unless otherwise stated that the results control for a variety of variables including age, gender, education level, health, and so forth. For specific control variables, please consult the individual studies.
106. Massoglia, 49 J Health & Soc Behav at 57 (cited in note 73).
107. Massoglia, 42 L & Socy Rev at 296 (cited in note 73) (positing that increased exposure to infectious disease while in prison and lower social status after release as explanations for the health-incarceration relationship).
108. Massoglia, 49 J Health & Soc Behav at 57 (cited in note 73). It is worth noting, however, that imprisonment does not result in higher incidences of all health problems.
109. See id.
110. See Tonisha R. Jones and Travis C. Pratt, The Prevalence of Sexual Violence in Prison: The State of the Knowledge Base and Implications for Evidence-based Correctional Policy Making, 52 Intl J Offender Therapy & Comp Criminol 280, 289 (2008) ("[T]he research indicates that such studies typically report prison sexual victimization rates of around 20%, suggesting that prison sexual victimization is a significant problem to be addressed.").
111. Massoglia, 49 J Health & Soc Behav at 57 (cited in note 73) ("[T]he experience of incarceration likely acts as a primary stressor, while characteristics of life after release-stigma, decreased earnings and employment prospects, and family problems-are a series of secondary stressors.").
112. Id at 61 ("[E]xposure to incarceration, rather than length of incarceration, appears to be more important to the relationship between incarceration and health problems.").
113. See also Schnittker and John, 48 J Health & Soc Behav at 125 (cited in note 71).
114. See Massoglia, 49 J Health & Soc Behav at 60-61 (cited in note 73). The studies we rely upon for this proposition all concerned medium- and maximum-security prisons where no prisoner was incarcerated for less than twelve months. It thus may be that a shorter term in jail or a minimum-security work camp will not result in the same level of post-prison harm, and we make no claims regarding the effects of those types and durations of incarceration.
115. See Western, Punishment and Inequality in America at 116 (cited in note 73) (showing that men who had been incarcerated received lower wages, were employed for fewer weeks, earned less than before they were incarcerated, and earned less than men who were never incarcerated);
116. Bruce Western, Jeffrey R. Kling, and David F. Weiman, The Labor Market Consequences of Incarceration, 47 Crime & Delinquency 410,412 (2001) (reviewing research suggesting negative effects of prison time on earnings and discussing causal mechanisms, such as stigmatization and erosion of human and social capital).
117. See also Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration 32-35 (Chicago 2007) (describing how prison functions as a "negative credential" to prospective employers).
118. But see Jeffrey R. Kling, Incarceration Length, Employment, and Earnings, 96 Am Econ Rev 863, 864 (2006) (finding "no substantial evidence of a negative effect of incarceration length on employment or earnings").
119. See Western, Kling, and Weiman, 47 Crime & Delinquency at 412-14 (cited in note 81): [I]ncarceration can interrupt young men's transition to stable career employment. The inaccessibility of career jobs to ex-inmates can be explained in several ways. The stigma of incarceration makes ex-inmates unattractive for entry-level or union jobs that may require high levels of trust. In addition, civil disabilities limit ex-felons' access to career employment in skilled trades or the public sector. Ex-offenders are then relegated to spot markets with little prospect for earnings growth. (citations omitted).
120. Western, Punishment and Inequality in America at 116 (cited in note 73) (noting, however, that for those never incarcerated the average number of weeks worked was forty-three).
121. Id at 123 (finding that the effect of incarceration on job tenure was not statistically significant for white men but was statistically significant for black and Hispanic men).
122. See id at 121 (differentiating between the primary labor market of well-paid career jobs and the secondary labor market of low-income unsteady jobs, and explaining that "[m]any exoffenders are... restricted to the secondary sector, where employment is precarious and wages are stagnant"). Western compared hypothetical workers differing only regarding past imprisonment and found that a "thirty-year-old black high school dropout, for example, earns on average nearly $9,000 annually, with incarceration resulting in a reduction of about $3,300. The parallel white earnings average $14,400, and the reduction about $5,200."
123. I d at 120. He continues, "Without incarceration, 4 percent of young blacks-one-fifth of all poor blacks-would be lifted out of poverty, and the poverty rate would fall to 14.5 percent."
124. Id at 127.
125. See id at 146-47 (finding that among white men, separation was more than twice as likely after incarceration);
126. Lopoo and Western, 67 J Marriage & Fam at 721 (cited in note 73) (finding that "incarceration during marriage significantly increases the risk of divorce or separation");
127. Beth M. Huebner, The Effect of Incarceration on Marriage and Work over the Life Course, 22 Just Q 281, 296 (2005) (concluding based on multiple models that "incarceration reduced the odds of marrying and attaining full-time employment by at least one third").
128. See Schnittker and John, 48 J Health & Soc Behav at 117 (cited in note 71) (noting that the "prison environment may foster psychological orientations that prevent integration and intimacy, including suspicion and aggression").
129. Id.
130. See Western, Punishment and Inequality in America at 146-148 (cited in note 73) (finding an increased likelihood of divorce for white men, though only a negligible difference for black men).
131. See notes 75-76 and accompanying text.
132. See Andrew E. Clark, et al, Lags and Leads in Life Satisfaction: A Test of the Baseline Hypothesis, 118 Econ J F222, F231 (2008) (noting that it is "well-known" that unemployment has a "large and significant" correlation with subjective well-being);
133. Richard E. Lucas, Adaptation and the Set-point Model of Subjective Well-being: Does Happiness Change after Major Life Events?, 16 Current Directions Psych Sci 75, 77 (2007) (reporting that individuals who "experience unemployment . [experience] permanent changes in life satisfaction");
134. Michael Argyle, Causes and Correlates of Happiness, in Kahneman, Diener, and Schwarz, eds, Well-being at 353, 362-63 (cited in note 5) (describing how unemployment decreases well-being even after controlling for the effects of reduced income).
135. Lucas, et al, write, The experience of unemployment did, on average, alter people's set-point levels of life satisfaction. People were less satisfied in the years following unemployment than they were before unemployment, and this decline occurred even though individuals eventually regained employment. Furthermore, the changes from baseline were very stable from the reaction period to the adaptation period-individuals who experienced a large drop in satisfaction during unemployment were very likely to be far from baseline many years after becoming reemployed.
136. Lucas, et al, 15 Psych Sci at 11 (cited in note 39).
137. Or as Clark, et al, put it, "[Unemployment starts off bad and pretty much stays bad."
138. Clark, et al, 118 Econ J at F231.
139. See Lucas, et al, 15 Psych Sci at 10 (cited in note 39). Psychologists have found that unemployment has a significant negative effect on well-being even after controlling for income.
140. Id.
141. See Western, Punishment and Inequality in America at 127 (cited in note 73).
142. See Richard E. Lucas, Time Does Not Heal All Wounds: A Longitudinal Study of Reaction and Adaptation to Divorce, 16 Psych Sci 945,948 (2005);
143. David R. Johnson and Jian Wu, An Empirical Test of Crisis, Social Selection, and Role Explanations of the Relationship between Marital Disruption and Psychological Distress: A Pooled Time-series Analysis of Four-wave Panel Data, 64 J Marriage & Fam 211, 218, 223 (2002) (finding evidence that the chronic stresses of divorce reduce long-term psychological heath, which improves after divorced persons enter into new relationships).
144. See, for example, Argyle, Causes and Correlates of Happiness at 363 (cited in note 91) (noting that the negative "effects of unemployment are greater if there is little social support").
145. Consider Frederick and Loewenstein, Hedonic Adaptation at 314-315 (cited in note 14) (describing the difficulty of adapting to negative outcomes when social contacts give inadequate or inappropriate support).
146. See Schnittker and John, 48 J Health & Soc Behav at 126-27 (cited in note 71): For example, relinquishing initiative and relying on external constraints may be rewarded in a prison setting, but these characteristics can be problematic in a home or workplace. By the same token, vigilance, mistrust, and blunted emotions might help prisoners to cope with an especially violent environment. These dispositions might also, however, elevate risk for cardiovascular disease and other stress-related illnesses.
147. Stress is strongly correlated with diminished well-being and with increased risk of heart disease. See Ed Diener and Robert Biswas-Diener, Happiness: Unlocking the Mysteries of Psychological Wealth 39-41 (Blackwell 2008) ("People who experience stressful situations, especially intense ones, often have a difficult time adapting back to normal: that is, they continue to experience physiological distress even after the stressful or traumatic event has happened.").
148. Consider also Zamble and Porporino, 17 Crim Just & Behav at 68 (cited in note 59) (suggesting the use of treatment programs to change behaviors adopted in prison and to teach coping skills).
149. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in The Utilitarians 5, 162 (Dolphin 1961).
150. See also id at 166 (discussing the costs of punishment).
151. See Jeremy Bentham, Principles of Penal Law, in John Bowring, ed, 1 The Works of Jeremy Bentham 365, 396 (William Tait 1843) ("If the apparent magnitude, or rather value of that pain be greater than the apparent magnitude or value of the pleasure or good he expects to be the consequence of the act, he will be absolutely prevented from performing it.").
152. See also Letter from O.W. Holmes to Harold J. Laski (Dec 17,1925), in Mark DeWolfe Howe, ed, 1 HolmesLaski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935 806 (Harvard 1953): If I were having a philosophical talk with a man I was going to have hanged (or electrocuted) I should say, I don't doubt that your act was inevitable for you but to make it more avoidable by others we propose to sacrifice you to the common good. You may regard yourself as a soldier dying for your country if you like. But the law must keep its promises.
153. Utilitarians have focused in addition on two other related objectives: rehabilitation of criminals and incapacitation of dangerous persons in order to render them suitable to reenter society. These goals of punishment have crept out of favor, however, as prisons have proven to be poor vehicles for reforming offenders, see Robert Martinson, What Works?-Questions and Answers about Prison Reform, 36 Pub Interest 22, 25 (1974) (arguing that rehabilitative efforts have failed to accomplish their goals), and incapacitation has had little noticeable effect on the rates of
154. serious crimes, see John J. DiIulio, Jr, Two Million Prisoners Are Enough, Wall St J A14 (Mar 12, 1999) (reporting that as crime levels have declined, incarceration rates have still risen);
155. Franklin E. Zimring and Gordon Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime 100-27 (Oxford 1995) (finding that increased incarceration rates in California led to a 15 percent decrease in overall crime rates but did not influence the rates of violent crimes such as assaults, robberies, and murders). Rehabilitation and incapacitation also have lost support as working theories of punishment because they could offer no response to the critique that they seemed to compel excessive and indefinite punishment of even minor crimes.
156. See Herbert Morris, Persons and Punishment, 52 The Monist 475, 485-86 (1968) (presenting the logical abnegation of proportionality in a system for dealing with offenders in which therapy, rather than punishment, is the goal). We focus here upon deterrence, which remains the principal utilitarian goal of punishment.
157. See, for example, Model Penal Code (MPC) § 1.02(2) (ALI 1980) (stating that one of the general purposes of the provisions governing the sentencing and treatment of offenders is "to prevent the commission of offenses"). Nonetheless, we hasten to note that the theory we propound here has little to say about rehabilitation and incapacitation, other than the fact that incapacitation may be possible at lower hedonic cost if criminals adapt to imprisonment.
158. See Part II.B.
159. See Richard A. Posner, Economic Analysis of Law 167-171 (Aspen 7th ed 2007) (describing the theory of optimal tort damages). For an idea of the problems that might be generated through overdeterrence, imagine the economic damage to society if the punishment for causing a car accident were set at $1 million and people ceased driving.
160. See Richard S. Frase, Punishment Purposes, 58 Stan L Rev 67, 68 (2005) (explaining that most modern systems set punishment "not only [by reference to] traditional crime-control purposes such as deterrence, incapacitation, and rehabilitation, but also a concept known as parsimony - a preference for the least severe alternative that will achieve the purposes of the sentence"). A second and perhaps more important consideration is the need to achieve marginal deterrence; we address this point in greater detail in Part II.C.
161. See generally Steven D. Levitt, The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding Litigation, 111 Q J Econ 319 (1996) (analyzing the cost to taxpayers of incarceration).
162. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J Polit Econ 169, 193 (1968) ("[I]n the United States in 1965, about $1 billion was spent on 'correction,' and this estimate excludes, of course, the value of the loss in offenders' time.").
163. Louis Michael Seidman, Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control, 94 Yale L J 315, 320 (1984);
164. Margery Fry, Bentham and English Penal Reform, in George W. Keeton and Georg Schwarzenberger, eds, Jeremy Bentham and the Law 20, 28 (Stevens & Sons 1948) ("[T]he suffering of a punished criminal goes duly down on the debit side, and must be balanced by some greater good in the credit column.").
165. See also Carl Emigholz, Note, Utilitarianism, Retributivism and the White Collar-Drug Crime Sentencing Disparity: Toward a Unified Theory of Enforcement, 58 Rutgers L Rev 583, 599 (2006) ("In the utilitarian calculus, the criminal justice system implicates a negative social cost: the crime... and pain inflicted upon the criminal as a result of the meted punishment.");
166. Levitt, 111 Q J Econ at 347 (cited in note 102) (acknowledging that typical studies may underestimate the costs of incarceration because of the unacknowledged "pain and suffering of prisoners and their families");
167. R.B. Brandt, Conscience (Rule) Utilitarianism and the Criminal Law, 14 L & Phil 65, 73 (1995).
168. Compare MPC § 1.02(2)(a) (listing "to prevent the commission of offenses" as the first purpose of the Code section governing punishment), with MPC § 1.02(2)(c) (stating that the third purpose of the same section is "to safeguard offenders against excessive, disproportionate or arbitrary punishment") (emphasis added).
169. See, for example, 18 USC § 3553(a) ("The court shall impose a sentence sufficient, but not greater than necessary.").
170. See, for example, Bentham, Principles of Morals and Legislation at 178-179 (cited in note 98) (setting forth the properties of apt punishment, including "equability" and "variability," in which the quantity of pain produced by a punishment can be adjusted to sufficiently outweigh the profit of the offense).
171. See Part LB-C.
172. See Wilson and Gilbert, 14 Current Directions Psych Sci at 132 (cited in note 40) (explaining that people "do not recognize beforehand" the extent to which adaptation will occur);
173. Ubel, Loewenstein, and Jepson, 11 J Exp Psych: Applied at 121-122 (cited in note 41) (reporting experimental results supporting the theory that "people often underappreciate their own powers of adaptation").
174. See also Gilbert and Wilson, 317 Science at 1354 (cited in note 42);
175. Ayton, Pott, and Elwakili, 13 Thinking & Reasoning at 78 (cited in note 43) (studying people who repeatedly failed a driving test "showed no improvement in their ability to forecast their moderate levels of happiness" following failure).
176. See, for example, 18 USC § 3553(a) ("The court shall impose a sentence sufficient, but not greater than necessary.");
177. MPC § 1.02(2) (stating that one of the general purposes of the provisions governing the sentencing and treatment of offenders is "to safeguard offenders against excessive, disproportionate or arbitrary punishment").
178. See also note 104 and accompanying text.
179. See Kolber, 109 Colum L Rev at 224-226 (cited in note 4).
180. Wilson and Gilbert, 14 Current Directions Psych Sci at 131 (cited in note 40) (explaining the concept of "immune neglect" as a tendency "not to take [natural psychological defenses] into account when predicting [one's] future emotional reactions").
181. Indeed, even the leading critics of utilitarianism value welfare and thus would count diminutions of welfare as substantial harms. See, for example, Michael S. Moore, Torture and the Balance of Evils, 23 Israel L Rev 280, 331-32 (1989) (defending a view that rejects strict consequentialism, but considers it as one moral principle among others).
182. Our account in this respect differs from that of Paul H. Robinson and John M. Darley, Does Criminal Law Deter? A Behavioral Science Investigation, 24 Oxford J Legal Stud 173, 188-89 (2004). Robinson and Darley suggest in passing that adaptation to prison will inhibit deterrence, but they do not account for the fact that putative criminals will evaluate whether to commit a crime before they have been incarcerated, and thus before they learn that they will adapt. In addition, even potential recidivists will forget about their own adaptation once they have been released; without this learning, they will be subject to the full deterrence force of threatened punishment each subsequent time they contemplate a crime.
183. See also notes 118-119 and accompanying text.
184. See Gilbert and Wilson, 317 Science at 1352-1353 (cited in note 42).
185. That is to say, by comparison to the general population, criminals may weigh the present far more heavily than the future when deciding upon a course of action. See generally James Q. Wilson and Richard J. Herrnstein, Crime and Human Nature (Simon & Schuster 1985) (presenting a theory of criminal behavior in which time discounting features prominently because the rewards of crime and the costs of crime do not occur simultaneously).
186. See also David S. Lee and Justin McCrary, Crime, Punishment, and Myopia *4, 28 (unpublished manuscript, July 2005), online at http://www. fordschool.umich.edu/research/pdf/crime-myopia.pdf (visited Sept 1, 2009) (demonstrating that hyperbolic discounting is more common among criminals than the general population);
187. Christine Jolis, Cass R. Sunstein, and Richard Thaler, A Behavioral Approach to Law and Economics, 50 Stan L Rev 1471, 1539-40 (1998) (explaining that hyperbolic discounting will result in prisoners feeling more of an impact with respect to a shorter punishment than a longer one);
188. David Laibson, Golden Eggs and Hyperbolic Discounting, 112 Q J Econ 443, 445-46 (1997) (defining hyperbolic discount functions as those characterized by a high discount rate over short horizons and a low discount rate over long horizons).
189. See Ascanio Piomelli, Foucault's Approach to Power: Its Allure and Limits for Collaborative Lawyering, 2004 Utah L Rev 395, 470 n 346 (noting prisoners' firsthand information regarding the conditions of confinement);
190. Daniel M. Donovan, Jr, Note, Constitutionality of Regulations Restricting Prisoner Correspondence with the Media, 56 Fordham L Rev 1151, 1166 (1988) (describing the informational value concerning prison conditions of prisoners' letters from prison).
191. No study has yet observed any differences in how various groups of people experience adaptation or forecast their future happiness. See, for example, Nick Sevdalis and Nigel Harvey, Predicting Preferences: A Neglected Aspect of Shared Decision-making, 9 Health Expectations 245, 248 (2006) (finding no evidence that "doctors are better equipped than their patients to judge the latter's future 'best interests'"). This is not to say that such differences cannot existand these conclusions are certainly tentative, pending future research-but at the moment there is no reason to believe that they do.
192. See Ayton, Pott, and Elwakili, 13 Thinking & Reasoning at 78 (cited in note 43).
193. See also notes 40-46 and accompanying text.
194. Gilbert, Meyers, and Wilson, 27 Personality & Soc Psych Bull at 1649 (cited in note 46).
195. It is worth noting that the state will also be able to incapacitate criminals at lower hedonic cost. To the extent that incapacitation is a normatively desirable penal objective or one of the objects of the criminal system, adaptation represents a normative good in that respect as well. See John J. DiIulio, Jr, Zero Prison Growth: Thoughts on the Morality of Effective Crime Policy, 44 Am J Juris 67, 69 (1999) (cataloguing studies showing the benefits of incapacitation);
196. John J. DiIulio, Jr, Prisons Are a Bargain, by Any Measure, NY Times A17 (Jan 16, 1996) ("[P]risons pay big dividends even if all they deliver is relief from the murder and mayhem that incarcerated felons would be committing if free.");
197. MPC § 1.02(1) (stating that one of the general purposes of the provisions governing the definition of offenses is "to subject to public control persons whose conduct indicates that they are disposed to commit crimes").
198. A lengthy prison term - or, more accurately, the state of being a "convicted felon" - carries with it a number of legal deficiencies that time does not cure. Federal law prohibits anyone who has been convicted of a crime for which punishment can exceed one year from possessing a firearm of any sort. See 18 USC § 922(g)(1). Twelve states currently prohibit some convicted felons from voting even after they are no longer associated with the criminal justice system, while an additional eighteen states prevent felons from voting if they have been released on probation or parole, and five additional states prevent felons from voting if they have been released only on probation.
199. See ProCon.org http://ProCon.org, State Felon Voting Laws (Sept 25, 2008), online at http://felonvoting.procon.org/viewresource.asp?resourceID=286 (visited Sept 1, 2009). These penalties are undoubtedly significant, but they are unlikely to cause substantial hedonic harm. No study has shown any hedonic impact from the loss of a capacity as circumscribed as the right to carry a gun or to vote, and it seems implausible that the loss of such rights would register hedonically on nearly the same magnitude as far more significant life events, such as births, deaths, illness, or financial shocks.
200. See notes 86-89 and accompanying text.
201. See notes 81-85 and accompanying text.
202. See Massoglia, 49 J Health & Soc Behav at 57 (cited in note 73).
203. See also Massoglia, 42 L & Socy Rev at 295-296 (cited in note 73) (hypothesizing that the disparities in health between races is due in part to the disproportionate imprisonment of different races).
204. See Bronsteen, Buccafusco, and Masur, 108 Colum L Rev at 1527-1531 (cited in note 2).
205. See notes 91-96 and accompanying text.
206. See Levitt, 111 Q J Econ at 346-47 (cited in note 102) (cataloguing a variety of prior studies that fail to incorporate the post hoc costs of imprisonment to the prisoner);
207. Becker, 76 J Polit Econ at 179-180 (cited in note 103) (limiting discussion of the costs of punishment to those incurred while the punishment is ongoing).
208. Consider Anthony C Thompson, Navigating the Hidden Obstacles to Ex-offender Reentry, 45 BC L Rev 255, 260 (2004);
209. Western, Punishment and Inequality in America at 119, 149-52 (cited in note 73) (finding strong effects of prison on unemployment and future life prospects, including a 30 percent diminution in wages and an 11 percent decline in the probability of getting married for African-American men);
210. Dermot Sullivan, Employee Violence, Negligent Hiring, and Criminal Records Checks: New York's Need to Reevaluate its Priorities to Promote Public Safety, 72 St John's L Rev 581, 596 (1998) (noting the connection between unemployment and recidivism);
211. John Irwin, The Felon viii (California 1987) ("Most ex-convicts live menial or derelict lives and many die early of alcoholism or drug use, or by suicide.").
212. See, for example, Thompson, 45 BC L Rev at 260 (cited in note 128);
213. Second Chance Act of 2007, Pub L No 110-199, 122 Stat 657
214. codified at 42 USC § 17501 et seq (encouraging "the development and support of... comprehensive reentry services" for former prisoners).
215. For instance, the Second Chance Act provides only for limited grants to programs that provide technical training and drug treatment for felons while they are still imprisoned. Rates of postprison unemployment and drug use belie the notion that these grants are having a substantial effect.
216. The lone counterexample may be the treatment of juvenile offenders, who have the opportunity to expunge convictions from their records in many states. See T. Markus Funk, A Mere Youthful Indiscretion? Reexamining the Policy of Expunging Juvenile Delinquency Records, 29 Mich J L Reform 885, 887 n 9 (1996) (collecting state statutes allowing for expungement of juvenile records). Of course, the simple fact that a criminal record has been expunged will by no means ameliorate all of the negative aftereffects of prison, which are due as much to the social separation imposed by prison as to the legal status of being a convicted felon.
217. See notes 86-89 and accompanying text.
218. Consider 18 USC § 3553(a) (directing federal judges to consider a host of factors when imposing a sentence, none of which relates to the prisoner's post-correctional experience).
219. See generally, for example, Wilson and Herrnstein, Crime and Human Nature (cited in note 115).
220. See also note 141.
221. These laws were inspired by a New Jersey statute known as "Megan's Law" (after the child victim who inspired its passage). NJ Rev Stat § 2C:7-1 et seq (West). There is now a federal mandate requiring every state to pass similar legislation.
222. See 42 USC § 14071(e)(2): The State... shall release relevant information that is necessary to protect the public concerning a specific person required to register under this section....The release of information under this paragraph shall include the maintenance of an Internet site containing such information that is available to the public.
223. J.J. Prescott and Jonah E. Rockoff, Do Sex Offender Registration and Notification Laws Affect Criminal Behavior? *23-26 (University of Michigan John M. Olin Center for Law & Economics Working Paper No 08-1006, Feb 2008), online at http://ssm.com/abstract=1100663 (visited Sept 1, 2009) (finding that offender notification laws reduced first-time commissions of crimes).
224. Massoglia, 49 J Health & Soc Behav at 61 (cited in note 73);
225. Schnittker and John, 48 J Health & Soc Behav at 125 (cited in note 71). For the qualification that there may be aspects of punishment that hedonic measures do not capture
226. see note 112 and accompanying text. Nonetheless, the hedonic component of punishment is undeniably large, and perhaps dominant.
227. This effect is exacerbated by the fact that the first few months of imprisonment (before adaptation begins) appear to be the worst The initial harshness of life in prison represents a fixed up-front punishment that accrues every time an offender is sentenced to more than a few months behind bars. See note 111 and accompanying text.
228. This is true irrespective of criminals' high discount rates See note 115. Precipitous discounting will cause criminals to view a four-year sentence as less than half as harsh as a two-year sentence; the post-prison hedonic costs of incarceration will have a similar (and compounding) effect.
229. See, for example, Bentham, Principles of Morals and Legislation at 169 (cited in note 98) (outlining reasons to maintain proportionality between punishment and offenses);
230. Eyal Zadir and Barak Medina, Law, Morality, and Economics: Integrating Moral Constraints with Economic Analysis, 96 Cal L Rev 323, 379 n 211 (2008) (noting that economic theory requires marginal deterrence - a lesser offense receives a lesser punishment-because otherwise a criminal will have no incentive not to commit the most serious crime possible).
231. See note 135 and accompanying text.
232. That criminals have extremely high discount rates is now a commonplace. See note 115. Economists, however, remain divided as to the theory behind this criminal behavior, and no fully satisfying explanation has yet emerged. Our argument, if it is correct, suggests the possibility that some behavior previously explained through high discount rates may in fact be attributable to other causes. For example, offenders may be responding rationally to the front-loading of punishment in jail sentences, understanding that much of the hedonic cost of being imprisoned will accrue whether they are forced to serve two years or ten. (This would, however, only apply to first-time criminals; recidivists, having been imprisoned once, already will have been afflicted with most of the negative effects of having served time.) This theory is, of course, highly contingent and highly tentative, but it raises questions about prior assumptions regarding the level of information possessed by first-time offenders.
233. For a small sampling of this extensive literature (here applied to sex offenders), see generally Prescott and Rockoff, Do Sex Offender Registration and Notification Laws Affect Criminal Behavior? (cited in note 135) (finding that reduced opportunities after conviction lead to greater rates of recidivism);
234. William Edwards and Christopher Hensley, Contextualizing Sex Offender Management Legislation and Policy: Evaluating the Problem of Latent Consequences in Community Notification Laws, 45 Intl J Offender Therapy & Comp Criminol 83 (2001);
235. Lois Presser and Elaine Gunnison, Strange Bedfellows: Is Sex Offender Notification a Form of Community Justice?, 45 Crime & Delinquency 299 (1999);
236. Robert A. Prentky, Community Notification and Constructive Risk Reduction, 11 J Interpersonal Violence 295 (1996).
237. See notes 81-89 and accompanying text.
238. See notes 91-97 and accompanying text.
239. See note 79 and accompanying text.
240. See Leon Pearl, A Case against the Kantian Retributivist Theory of Punishment: A Response to Professor Pugsley, 11 Hofstra L Rev 273, 274 (1982).
241. See Frase, 58 Stan L Rev at 73 (cited in note 101) (discussing the theory of pure retribution and its purposes).
242. See Kolber, 109 Colum L Rev at 203 (cited in note 4).
243. Id at 196.
244. Id. With respect to retributivism specifically
245. see id at 199-216.
246. For a discussion of the retributivist movement among criminal law thinkers, see Pearl, 11 Hofstra L Rev at 274 (cited in note 146) ("Within the last twenty-five years a number of philosophers and legal scholars have revived retributivism as a theoretical basis for criminal punishment").
247. See also Youngjae Lee, The Constitutional Right against Excessive Punishment, 91 Va L Rev 677, 739-741 (2005) (arguing that because utilitarianism focuses on overall societal well-being, it may fail to assign punishments according to comparative desert).
248. See Michael Moore, Placing Blame: A General Theory of the Criminal Law 104 (Clarendon 1997) (explaining that under retributivism, the fact that punishment is deserved gives us not only sufficient right to punish the guilty, but also an obligation to achieve such retributive justice).
249. See Kolber, 109 Colum L Rev at 224-225 (cited in note 4);
250. id at 226 (arguing that fines should be a function of the offender's income or ability to pay).
251. We again note the caveat that hedonic reports may not capture every aspect in which prison punishes. See note 112 and accompanying text. The analysis that follows does not apply to nonhedonic punishment that scales linearly with the amount of time in prison, such as perhaps the inability of a prisoner to spend time with her spouse or family. At the same time, we suspect that nearly all of the effects of punishment will be reflected in the hedonic calculus. Accordingly, perturbations in the hedonic impact of imprisonment will have significant consequences for the overall level of punishment imposed.
252. See Lee, 91 Va L Rev at 737-38 (cited in note 151) ("The purpose of punishment, under [the utilitarian] view, is not to give each criminal what he or she deserves, but to deter future crimes, to incapacitate criminals by keeping them 'off the streets,' or to rehabilitate criminals so they [] become better citizens.");
253. Steven Eisenstat, Revenge, Justice and Law: Recognizing the Victim's Desire for Vengeance as a Justification for Punishment, 50 Wayne L Rev 1115, 1162 (2004) ("Utilitarians are forward looking; they countenance punishment only if a social good will come from it");
254. Erik Luna, Punishment Theory, Holism, and the Procedural Conception of Restorative Justice, 2003 Utah L Rev 205, 209 ("Whatever goal is espoused, utilitarian-based punishment is always forward-looking, seeking to reduce the intensity and gravity of crime in society. In other words, utilitarianism takes the position that 'bygones are bygones' and that future consequences should be the sole guide for sanctioning decisions.") (citation omitted).
255. John Rawls, A Theory of Justice (Belknap 1971).
256. For perhaps the most influential early effort, see generally Herbert Morris, 52 The Monist 475 (cited in note 99).
257. See generally, for example, Moore, Placing Blame (cited in note 152).
258. 159 Id at 83.
259. See, for example, Mary Sigler, Just Deserts, Prison Rape, and the Pleasing Fiction of Guideline Sentencing, 38 Ariz St L J 561, 563 (2006).
260. Moore, Placing Blame at 88 (cited in note 152).
261. See Jean Hampton, Correcting Harms versus Righting Wrongs: The Goal of Retribution, 39 UCLA L Rev 1659, 1663 (1992) ("[R]etributive justice is concerned with wrongful actions from which such harms result. Although a punishment may sometimes involve the wrongdoer compensating her victim in some way, the purpose of punishment is not to compensate the person for the harm suffered, but 'to right the wrong.'").
262. See Kolber, 109 Colum L Rev at 199-216 (cited in note 4).
263. See Moore, Placing Blame at 105 (cited in note 152) (noting "the commitment of retributivism... to the intrinsic goodness of punishing the guilty").
264. See also, for example, Sigler, 38 Ariz St L J at 563 (cited in note 160) ("[P]unishment of the deserving is intrinsically good; its justification does not depend on any further positive consequences that punishment might be expected to produce.").
265. See Part I.B.
266. Again, some retributivists will resist the claim that their theory links punishment with the imposition of harm (negative experience). But as we have argued, retributivism depends upon this link. A standard retributivist position would be that someone who commits a more severe crime typically deserves a longer prison sentence than someone who commits a less severe crime, That position makes sense only if longer prison sentences are considered worse experiences than shorter ones. When a retributive theory addresses the severity of punishment, that severity is necessarily measured in terms of the harm or negative experience imposed on the offender.
267. We note that retributivists often deem punishment to be only intentional, not merely knowing, infliction of something negative upon a criminal. But, just as the criminal law almost always holds offenders responsible for the consequences that the offenders knew would follow their acts, the state is similarly responsible. See Kolber, 109 Colum L Rev at 197 (cited in note 4). Moreover, whether or not the known but unintended consequences are characterized as "punishment," it would seem irrational as a matter of policy, and perhaps indefensible on normative grounds as well, for the state to choose to ignore what it knows will follow from its acts. The postrelease effects of imprisonment are at least known to juries, judges, and legislators, even if those parties do not incorporate them into their own calculations.
268. For an analogous discussion in the medical context, consider Sevdalis and Harvey, 9 Health Expectations at 248 (cited in note 117) (finding no evidence that doctors possess better abilities to forecast patients' interests than patients themselves).
269. See Moore, Placing Blame at 98-99 (cited in note 152). This argument is the opposite of limiting retributivism's parsimony principle (the principle that we should punish no more than needed to achieve the desired level of deterrence), because Moore maintains that we fail to achieve the true goal of punishment if we punish too little. As discussed below, though, limiting retributivism uses desert to set a lower bound of punishment and therefore is not entirely insensitive to the demands of the retributive theory.
270. As explained below, the consequences of adaptation for the parsimony principle are the other side of the same coin: adaptation allows us to achieve the desired level of deterrence without inflicting as much harm.
271. Frase, 58 Stan L Rev at 68 (cited in note 101).
272. See Norval Morris, Madness and the Criminal Law 179 (Chicago 1982): [A] deserved punishment... does not mean the infliction on the criminal offender of a pain precisely equivalent to that which he has inflicted on his victim; it means rather a not undeserved punishment which bears a proportional relationship in a hierarchy of punishments to the harm for which the criminal has been convicted.
273. See Frase, 58 Stan L Rev at 68 (cited in note 101) (describing the principles used to finetune sentences, including deterrence, incapacitation, rehabilitation, and parsimony);
274. Lawrence Crocker, The Upper Limit of Just Punishment, 41 Emory L J 1059, 1062 & n 8 (1992);
275. Norval Morris, The Future of Imprisonment 58-84 (Chicago 1974) (describing parsimony, dangerousness, and desert as guiding principles of imprisonment).
276. See also John Bronsteen, Retribution's Role, 84 Ind L J 1129 (2009) (arguing that both retributive and utilitarian theories must be employed for punishing past wrongdoing and protecting future victims, respectively).
277. Frase, 58 Stan L Rev at 68 (cited in note 101).
278. id.
279. We acknowledge of course that longer prison sentences will still impose more harm than shorter ones. We question only the degree of difference, not the existence of any difference.
280. Kahan, 63 U Chi L Rev at 593 (cited in note 10).
281. See also, for example, Dan M. Kahan, The Secret Ambition of Deterrence, 113 Harv L Rev 413, 419-435 (1999) (favoring the expressive theory of punishment over deterrence-based rationales).
282. See Jens David Ohlin, Applying the Death Penalty to Crimes of Genocide, 99 Am J Intl L 747, 768 (2005) (arguing that under the expressive theory of punishment, the factors of the penal system all "boil down to elaborate practices of praising and blaming").
283. It would not be enough for an expressivist to deny the possibility of those outcomes on the ground that they would violate the expressive purpose of punishment-for example, to say that punishing an innocent would not happen in an expressivist system because it would send the wrong message. First, sending the right message would depend solely on the public's belief that the accused was guilty, not on her actual guilt. And second, the wrong of inflicting harm on the innocent or excessive harm on the guilty is not limited to the fact that it would send a bad message.
284. See generally Paul H. Robinson and John M. Darley, The Utility of Desert, 91 Nw U L Rev 453 (1997).
285. Id at 497.
286. See id at 477: [T]he criminal law can only hope to shape moral thinking... if it has earned a reputation as an institution whose focus is morally condemnable conduct and is seen as giving reliable statements of what is and is not truly condemnable. A criminal law that is seen as having a different criterion for criminalization - such as criminalization whenever the greater penalties of criminal law can provide useful deterrents - is not likely to gain such a reputation.
287. Id (emphasis added).
288. See generally Paul H. Robinson, Competing Conceptions of Modern Desert: Vengeful, Deontological, and Empirical, 67 Camb L J 145 (2008).
289. Id at 147.
290. Id at 148.
291. See also Aaron J. Rappaport, Rationalizing the Commission: The Philosophical Premises of the US Sentencing Guidelines, 52 Emory L J 557, 568 (2003) ("[PJunishment is justified based on some inherent moral quality of the act or actor himself").
292. Robinson, 67 Camb L J at 149 (cited in note 184).
293. Id.
294. Id at 147
295. quoting Edmund L. Pincoffs, Classical Retributivism, in Joel Feinberg and Hyman Gross, eds, Philosophy of Law 541 (Belmont 2d ed 1980).
296. Consider Bronsteen, Buccafusco, and Masur, 108 Colum L Rev at 1537-1538 (cited in note 2) (explaining that as a result of the long delays in civil litigation, harmed plaintiffs will be willing to settle for lower amounts as they adapt to their injuries).
297. Robinson, 67 Camb L J at 151 (cited in note 184).
298. For a discussion of consequentialist retributivism, see Michael T. Cahill, Retributive Justice in the Real World, 85 Wash U L Rev 815, 833-35, 861-869 (2007) (explaining consequentialist retributivism as a belief that emphasizes aggregate levels of overall deserved punishment, rather than focusing on punishing any given deserving individual).
299. Id at 833 (emphasis added).
300. Id at 851.
301. Here, desert is linked closely with the severity of the crime committed and the amount of punishment deserved.
302. Cahill, 85 Wash U L Rev at 855 (cited in note 192).