Bentham on Stilts: The bare relevance of subjectivity to retributive justice

California Law Review

Volumn 98, Issue 3, 2010, Pages 907-988

  Markel, Dan ^a   Flanders, Chad ^b,c  

^a FLORIDA STATE UNIVERSITY   (United States)

^b SAINT LOUIS UNIVERSITY   (United States)

^c YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 78149435403     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (391)

1. E.g., Symposium, Legal Implications of the New Research on Happiness, 31 J. LEGAL. STUD. 1 (2008) (including contributions from, among others, Cass Sunstein, Eric Posner, Matthew Adler, and Martha Nussbaum). Some scholars have registered their concerns with the claims made by those who endorse extending the findings of the psychological literature to the design of legal policies and institutions.
2. E.g., Rick Swedloff & Peter H. Huang, Tort Damages and the New Science of Happiness, 85 IND. L. J. 553, 570-71 (2010) (questioning the strength of adaptation to injury and return to well-being);
3. Martha C. Nussbaum, Who Is the Happy Warrior? Philosophy Poses Questions to Psychology, 37 J. LEGAL STUD. 581 (2008) (defending an objective conception of happiness and criticizing subjective, psychological accounts). But other scholars advance a subjective stance towards happiness-that is, it is a psychological state of (very roughly speaking) "pleasure." The subjectivists we review in this article largely do so as well. This is in fact a controversial understanding of happiness, to which Nussbaum offers a valuable and bracing corrective. Nonetheless, John Bronsteen, Christopher Buccafusco, and Jonathan Masur, as well as Adam Kolber-our targets in much of this Article-have recently come out with more sweeping defenses of the importance of subjective well-being in the law.
4. See John Bronsteen, Christopher Buccafusco & Jonathan Masur, Welfare as Happiness, 98 GEO. L. J. 1583 (2010);
5. Adam Kolber, The Experiential Future of the Law, 60 EMORY L. J. (forthcoming 2011) available at http://papers.ssrn.com/sol3/ papers.cfm?abstract-id=1488444.
6. See, e.g., John Bronsteen, Christopher Buccafusco & Jonathan S. Masur, Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 COLUM. L. REV. 1516, 1519 (2008);
7. Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745 (2007).
8. John Bronsteen, Christopher Buccafusco & Jonathan Masur [hereinafter BBM], Happiness and Punishment, 76 U. CHI. L. REV. 1037 (2009). Related to the relationship between happiness and punishment is the overall significance of changes in the hedonic levels of offenders relative to their baselines, experiences, and preferences. These issues are similarly taken up in recent scholarship.
9. See Adam J. Kolber, The Subjective Experience of Punishment, 109 COLUM. L. REV. 182 (2009) [hereinafter Kolber, Subjective Experience];
10. Adam J. Kolber, The Comparative Nature of Punishment, 89 B.U. L. REV. 1565 (2009) [hereinafter Kolber, Comparative Nature];
11. Shawn J. Bayern, The Significance of Private Burdens and Lost Benefits for a Fair-play Analysis of Punishment, 12 NEW CRIM. L. REV. 1 (2009).
12. See, e.g., sources cited supra note 3.
13. In this respect, we are not engaged in a different dispute in criminal law theory concerning the objective or subjective prerequisites for criminal liability: whether wrongfulness is judged by what the facts are (objective) or what the defendant believes them to be (subjective).
14. See infra note 29 and accompanying text in Part I.
15. See, e.g., BBM, supra note 1, at 1590 (explaining that the account of "well-being as moment-by-moment affect evokes the account of welfare contained within the utilitarian theories of Jeremy Bentham and Peter Singer");
16. Kolber, Subjective Experience, supra note 3 at 184 & n.1;
17. see also infra n.42;
18. Kolber, The Experiential Future of the Law, supra note 1, (manuscript at 5) (citing Bentham on the importance of subjective experience while noting that Bentham "may have oversimplified our experiential palate").
19. Utilitarians conventionally view punishment as a necessary evil only to be applied if it will serve to advance (or maximize) social welfare going forward. The primary concern of utilitarians as applied to punishment is reducing future crime through penal responses that yield deterrence, rehabilitation, and incapacitation. See, e.g., JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 34-38 (5th ed. 2009) (describing utilitarian justifications for punishment). Recently, however, some utilitarians have focused on crime reduction through building compliance predicated on legitimacy-enhancing strategies that focus on gaining trust and support from the community, which often involves consistency with lay intuitions of moral desert.
20. See, e.g., Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. REV. 453 (1997). By contrast, what makes an approach to punishment distinctively retributivist in orientation (at least in the legal realm) is its commitment to the view that punishment for legal wrongdoing is "internally intelligible" or intrinsically good and does not rely on the achievement of external benefits in crime reduction in order to justify pursuit of that intrinsic good. Some might prefer thinking of the pursuit of retributive justice as demanded by obligations to pursue the "right" rather than the warrant to pursue the "intrinsically good." We think there are problems with such a view but we will leave them unarticulated since, for our purposes, they are outside the scope of this paper.
21. See infra note 19 & Part II. We will use the terms retributivist, retributive justice, and retributive as roughly interchangeable. But see Michael T. Cahill, Retributive Justice in the Real World, 85 WASH. U. L. REV. 815, 820 (2007) (offering distinctions between "retributive" theory and "retributivist" theory that are unnecessary for our purposes here).
22. Those interested in a critique of Professor Kolber's arguments primarily on deterrence grounds should look at Miriam H. Baer, Response, Evaluating the Consequences of Calibrated Sentencing: A Response to Professor Kolber, 109 COLUM L. REV. SIDEBAR 11, 19-20 (2009), which contends that uncalibrated sentencing does not clearly fail to achieve the goal of deterrence.
23. We owe the "islands of agreement" metaphor to Gabriella Blum. GABRIELLA BLUM, ISLANDS OF AGREEMENT: MANAGING ENDURING ARMED RIVALRIES (2007).
24. See Panetti v. Quarterman, 551 U.S. 930, 958-59 (2007);
25. Dan Markel, Executing Retributivism: Panetti and the Future of the Eight Amendment, 103 Nw. L. REV. 1163 (2009) [hereinafter Markel, Executing Retributivism].
26. See Jean Hampton, An Expressive Theory of Retribution, in RETRIBUTIVISM AND ITS CRITICS 1, 15 (Wesley Cragg ed, 1992).
27. A concern for cruelty would also, under our configuration, encompass a concern for the objective medical condition of the offender such that the state could not exhibit indifference to serious medical needs of offenders.
28. In a related and powerful paper, Professor David Gray drills down on this equivocation between punishment and suffering, and notes, among other things, how prominent retributivists have long rejected the suggestion that experiential results from punishment are material to the justification and amount of punishment inflicted. See David Gray, Punishment as Suffering, 64 VAND. L. REV. (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers. cfm7abstract-id=1573600.
29. Indeed, Kolber might be willing to concede this, though it seems to us at some cost. Kolber, Subjective Experience, supra note 3, at 203 (noting that objective theories of retribution, even if they are able to discount subjective experience, would be "unattractive" for other reasons).
30. The equation of punishment with suffering can perhaps be better understood as the attempt to justify punishment as a means to cause offenders to suffer. For some sophisticated discussion of this point, see Mitchell N. Berman, Two Kinds of Retributivism, in Philosophical Foundations of Criminal Law (R. A. Duff & Stuart P. Green eds.) (forthcoming 2010) available at http://papers.ssrn.com/sol3/papers.cfm7abstract-id= 1592546. For what it's worth, we do not mean to say that those persons who identify as retributivists and who equate punishment with suffering are not really retributivists, and that they are somehow prohibited from using the concept. But we do believe that their conception of retributivism is an inferior one, for the reasons we go on to explore in this Article.
31. The term "expressive overdetermination" was first used, so far as we know, by Dan Kahan. See, e.g., Dan M. Kahan, What's Really Wrong with Shaming Sanctions, 84 TEX. L. REV. 2075, 2085 (2006) ("A law or policy can be said to be expressively overdetermined when it bears meanings sufficiently rich in nature and large in number to enable diverse cultural groups to find simultaneously affirmation of their values within it."). The idea is similar to an incompletely theorized agreement in that it is thought of as a strategy to facilitate harmony among plural worldviews but it is different in that the latter tries to avoid "going deep" or appealing to thick cultural values.
32. See generally Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733 (1995).
33. Compare, for example, the various discussions of proportionality appearing in the following articles: Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: " Proportionality" Relative to What?, 89 MINN. L. REV. 571, 588-98 (2005) (explaining how proportionality of government action can be understood in reference to fault, costs and benefits, and available alternative measures);
34. Alice Ristroph, Proportionality as Principle of Limited Government, 55 DUKE L. J. 263, 314-30 (2005) (defending proportionality as a consideration of "limited government");
35. Ian P. Farrell, Gilbert & Sullivan and Scalia: Philosophy, Proportionality and the Eighth Amendment, 55 VILL. L. REV. (forthcoming 2010) (claiming that proportionality is not intrinsic to any one theory of punishment);
36. see also Hugo Adam Bedau, An Abolitionist's Survey of the Death Penalty in America Today, in DEBATING THE DEATH PENALTY 15, 34 (Hugo Bedau & Paul Cassell eds., 2004) (discussing the principle of Minimum Invasion, which states that "[s]ociet[ies] ought to abolish any lawful practice that imposes more violation of individual liberty, privacy, or autonomy [than necessary]... when it is known that a less invasive practice is available and is sufficient" to satisfy the objective).
37. By "internal intelligibility," in this context, we mean simply that the intrinsic goods of retribution are independent from the goods of crime reduction or civil peace. The idea is that such goods can be realized through punishment and understood as reasons for action even if they are not "all things considered" reasons for action. See also Mitchell Berman, Punishment and Justification, 118 ETHICS 258, 278-84 (2008) (explaining how retributive justifications for punishment can be understood as "tailored" to respond to particular doubts about the practice of punishment as opposed to "all-things-considered" justifications of punishment). Specifically, the nature of the reason for action in the retribution context is that punishing offenders for their offenses makes sense as a way to communicate and express our fidelity to the ideals elaborated in Part II, where we discuss equal liberty under law, moral accountability, and democratic selfdefense. For further discussion of the internal intelligibility of punishment,
38. see infra Part II.B.2.
39. We don't focus our effort here on spelling out the right relationship between retributive justice and proportionality, but we elaborate our views on this issue in Parts II and IV.
40. We are not alone in these views. Professor Simons has written a short and sharp response to Kolber. Kenneth W. Simons, Response, Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment, 109 COLUM. L. REV. SIDEBAR 1 (2009). While we share some of Professor Simons' views, we add our own independent and elaborated arguments here.
41. See also Gray, supra note 14.
42. Notwithstanding our disagreements on other matters, we do share Professors Kolber and Simons' concerns that sentencing calibration based on subjective experience might be occurring in an opaque manner and without sufficient democratic deliberation about the practice.
43. See, e.g., Dan Markel, Against Mercy, 88 MINN L. REV. 1421, 1428 n.22 (2004) (identifying other scholars, like Kathleen Dean Moore, who argue for special treatment based on the subjective experiences of offenders) [hereinafter Markel, Against Mercy].
44. See sources cited supra note 3.
45. In Part II, we draw on, amplify, and revise aspects of Market's earlier elaborations of this account and its significance for other criminal justice and related issues. See, e.g., Dan Markel, State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty, 40 HARV. C. R.-C.L. L. REV. 407 (2005) [hereinafter Markel, State, Be Not Proud];
46. Markel, Executing Retributivism, supra note 11;
47. Markel, Against Mercy, supra note 23;
48. Dan Markel, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 VAND. L. REV. 2157 (2001) [hereinafter Markel, Shaming Punishments];
49. Dan Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 CORNELL L. REV. 239 (2009) [hereinafter Markel, Retributive Damages];
50. Dan Markel, The Justice of Amnesty? Towards a Theory of Retributivism in Recovering States, 49 U. TORONTO L. J. 389 (1999).
51. See, e.g., Markel, Executing Retributivism, supra note 11 (emphasizing significance of competence of offender as predicate for retributive punishment);
52. see also Pamela A. Wilkins, Competency for Execution: The Implications of a Communicative Model of Retribution, 76 TENN. L. REV. 713 (2009) (same);
53. ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS 372 (1981) (same).
54. To clarify, we do not mean to deny that there is much that is novel and nontrivial in the subjectivists. Our point is that what is novel and nontrivial in what they say is, in our opinion, false or unpersuasive.
55. In this regard we note the pickle the subjectivists are in: they have little principled reason to forbear from adopting an idiosyncratic suffering approach when deciding what conduct triggers criminal liability altogether. It would seem that citizens who have an easier time with compliance to the law would presumably be given less leeway and harsher punishment than those who suffer more by virtue of their compliance. See also infra note 240.
56. See generally sources cited supra note 3.
57. Kolber focuses primarily on variance across persons in his first piece on subjectivism. See Kolber, Subjective Experience, supra note 3, at 184-85 (arguing for calibration of punishment based on the subjective experience of punishment). BBM, Bayern, and Kolber (in his second piece on the subject) focus primarily on intertemporal issues associated with the same individual.
58. See Bayern, supra note 3, at 2-3 (focusing on problems for fair-play retributivism when considering the time lapse between offense and punishment);
59. BBM, supra note 3, at 1038 (arguing that the experience of incarceration becomes easier to bear as time in prison passes, thus having little lasting effect on prisoners' well-being); Kolber, Comparative Nature, supra note 3, at 1567-69 (arguing for consideration of an offender's baseline pre-punishment condition in determining the severity of punishment).
60. See Kolber, Subjective Experience, supra note 3
61. See Kolber, Comparative Nature, supra note 3.
62. See infra Part IV.C (discussing distributive justice and equality).
63. Kolber, Comparative Nature, supra note 3, at 1594-95 & n.73 (citing JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 182 (Prometheus Books ed. 1988) (1789)).
64. See Kolber, Subjective Experience, supra note 3, at 183.
65. Utilitarians have been less neglectful, but even they, in Kolber's view, have not sufficiently taken into account the subjective aspect of punishment. See id. at 236.
66. Id. at 183.
67. Id. at 199. Kolber also briefly addresses the reality that many retributivists think prior convictions may also be relevant to the proportionality analysis. Kolber, Subjective Experience, supra note 3, at 224-25 (mentioning that dispute about whether recidivists should be punished more disregards whether offenders "adapt" to prison after their first visit).
68. Kolber, Subjective Experience, supra note 3, at 216 ("Inflicting such negative experiences is a harm that requires justification. In order to meet the proportionality requirement, retributivists must measure punishment severity in a manner that is sensitive to individuals' experiences of punishment or else they are punishing people to an extent that exceeds justification.").
69. Id. at 188;
70. see also id. at 235 (describing the punishment of "boxing").
71. Id. at 188. For the most part, we address the subjectivists conceptually, choosing to stipulate to their empirical claims even though one could plausibly be skeptical of such claims. For example, perhaps people do not differ all that much in how they experience certain events. There is a further question about whether people's reports of suffering correspond to the suffering they actually subjectively feel. See also infra note 75.
72. In any event, suppose that our subjective variances are rather significant. Would it be a mistake for the law to assume that people-with the exception of certain outliers-are roughly the same? Cf. H.L.A. HART, THE CONCEPT OF LAW 191 (1961) (noting "approximate equality" between all people);
73. Morris, infra note 54, at 476 (supposing people to have a "rough equivalence in strength and abilities, a capacity to be injured by each other and to make judgments that such injury is undesirable"). Insofar as rough equality of experiences is a fiction, it may be a benign one, because its inaccuracy only affects a very small percentage of the overall population-those convicted and punished for their crimes. Cf. Stephen J. Morse, Undiminished Confusion in Diminished Capacity, 75 J. CRIM. L. & CRIMINOLOGY 1 (1984) (discussing the rather low floor of competence necessary for citizens to comply with most criminal laws).
74. Kolber, Subjective Experience, supra note 3, at 236.
75. BENTHAM, supra note 33, at 182;
76. Kolber, Subjective Experience, supra note 3, at 184 & n. 1 (noting that Bentham "staked out a clear subjective position more than two hundred years ago").
77. See, for example, Kant's views on the death penalty. IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE 102 (John Ladd trans, 1965) (arguing that the death penalty should be the penalty for each murder and that to fail to punish murder with death would be an injustice). For a different elaboration of the concern for reducing both Type I (overpunishment) and Type II (under-punishment) errors,
78. see Markel, Retributive Damages, supra note 25, at 265-66.
79. Bentham is famous for, among other things, his dismissal of natural rights discourse as nothing so much as "nonsense upon stilts." Jeremy Bentham, Anarchical Fallacies, in 'NONSENSE UPON STILTS': BENTHAM, BURKE AND MARX ON THE RIGHTS OF MAN 53 (Jeremy Waldron ed., 1987). For our use of this phrase,
80. see supra text accompanying notes 7-8.
81. See Kolber, Comparative Nature, supra note 3.
82. Id. at 1566.
83. Id. at 1567-68.
84. Id. at 1568. Kolber relies on Joel Feinberg's work on tort law for this point. However, as David Gray points out, Feinberg elsewhere distinguishes criminal law from tort on grounds that the criminal law is a largely "non-comparative" enterprise.
85. See Gray, supra note 14.
86. Id. at 1576. Note that Kolber risks overstating the way prison limits a prisoner's property rights. While in prison, some sticks in the bundle of property rights are removed (for example, the ability to quietly enjoy the views of one's parcel of Blackacre), but others remain, such as the ability to sell or divide Blackacre or make plans to pass it to one's heirs. The value of those sticks might differ immensely across offenders.
87. See, e. g., id. at 1591 ("When a person, through no fault of his own, contracts a contagious illness, he may be lawfully confined against his will for a long period of time. Suppose that while under quarantine, he commits a crime over the internet [sic]. Because his baseline liberty is already quite restricted, proportionalists have to severely curtail his liberties in order to achieve a liberty deprivation that is equal to the deprivation that applies to others who commit the same crime but who do not have unusually restricted baseline liberties.") (footnote omitted).
88. Kolber cites, for example, Herbert Fingarette, Punishment and Suffering, 50 PROC. & ADDRESSES OF THE 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.").
89. Kolber, Comparative Nature, supra note 3, at 1582 n.43.
90. He also cites JOHN KLEINIG, PUNISHMENT AND DESERT 67 (1973) ("The principle that the wrongdoer deserves to suffer seems to accord with our deepest intuitions concerning justice.");
91. A.M. Quinton, On Punishment, 14 ANALYSIS 133, 136-37 (1954) (stating that punishment is "infliction of suffering on the guilty");
92. John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 4-5 (1955) (describing retributivists as embracing the view that "[i]t is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing");
93. Kolber, Subjective Experience, supra note 3, at 199 n.48. Kolber notes the distinction between the focus by some on "deserved suffering" and by others on "deserved punishment." Id. It is important to see that the term "suffering" may be ambiguous here. Some may be taking the word to mean that offenders should suffer (i.e., endure) some objectively measured sanction. We are inclined charitably to read some of the philosophers in this way. But to the extent subjectivists or others who identify as retributivists connect suffering to physical pain or mental anguish, we believe they are focused on thing for reasons we elaborate later.
94. John Finnis has sounded the warning against too easily conflating punishment with the experience of pain. See John Finnis, Retribution: Punishment's Formative Aim, 44 AM J. JURIS. 91, 97-98 (1999) ("To understand [the 'retributive shaping point of punishment'], it is necessary to set aside the assumption made all too casually by Nietzsche, but also by Bentham, Hart, and countless other theorists-the assumption that the essence of punishment is the infliction of pain. Putting punishment on the level of the sensory, sentient, and emotional is an efficient way of blocking all understanding of its real point and operation, which is on the level of the will, that is to say of one's responsiveness to the intelligible goods one understands. . . . The essence of punishments, as Aquinas clearly and often explains, is that they subject offenders to something contrary to their wills-something contra voluntatem. This, not pain, is of the essence.") (footnote omitted).
95. See also infra note 85.
96. Bayern, supra note 3, at 2.
97. See Herbert Morris, Persons and Punishment, 52 THE MONIST 475, 478 (1968),
98. reprinted in HERBERT MORRIS, ON GUILT AND INNOCENCE: ESSAYS IN LEGAL PHILOSOPHY AND MORAL PSYCHOLOGY 31, 33-36 (1976).
99. See also infra note 109.
100. Bayern, supra note 3, at 2, 10.
101. Id. at 2.
102. Id.
103. Id. at 11.
104. Kolber, Comparative Nature, supra note 3, at 1566.
105. Id. at 1587 ("Consider an extreme case: A drug dealer is abducted by a rival gang. The drug dealer is then held against his will in a walk-in closet for a year. During this time, the drug dealer obviously lives in a state of severely restricted freedom. Suppose that police eventually find the drug dealer, remove him from his rivals' hideout, and take him into custody. The drug dealer is subsequently tried and convicted for his prior drug trafficking crimes."). For a less extreme example taken from the headlines, see Douglas A. Berman, You Be the Judge: What Sentence Would You Give to Gilbert Arenas Following His Plea?, SENTENCING LAW & POLICY (Jan. 16, 2010), http://sentencing.typepad.com/sentencing-law-and-policy/2010/01/ you-be-the-judgewhat-sentence-would-you-give-to-gilbert-arenas-following-his- plea.html (asking whether the sentencing outcome for [basketball player Gilbert] Arenas should turn on the fact that he is also suffering a "multi-million dollar 'punishment'" in the form of a fine by the NBA).
106. Remember that for Bayern, the false imprisonment an offender experiences after his crime but before bis state punishment is a relevant consideration to the amount of state punishment. See supra notes 58-60 and accompanying text.
107. BBM, supra note 3.
108. See generally Shane Frederick & George Loewenstein, Hedonic Adaptation, in WELLBEING: THE FOUNDATIONS OF HEDONIC PSYCHOLOGY 302 (Daniel Kahneman et al. eds., 1999) (discussing how hedonic adaptation allows people to become happier by adjusting their sensitivities to various stimuli).
109. BBM, supra note 3, at 1069-70. As with Kolber, we do not intend to register a substantial quarrel with the accuracy of the empirical work cited and relied on by BBM or the controversial assumption that one can effectively translate lessons from human psychology associated with lottery winners and those rendered paraplegic to the context of punishment. Rather, our aim is primarily limited to questioning the usefulness of these claims to reshaping punishment policy in light of retributive justice values.
110. But see infra notes 75 & 77, and supra note 40.
111. BBM, supra note 3, at 1039.
112. Id. at 1039, 1069; .
113. see also id. at 1070 ("[I]f increasing the amount of a fine or the length of a prison term does not increase the harm imposed on an offender to the degree expected, then any quantum of punishment carries less retributive force than has been supposed.");
114. id. at 1071 ("[I]n order to deliver the deserved punishment, the state needs to be able to adjust the amount of imposed harm ....") (emphasis added); id. at 1072 ("Even more so than utilitarianism and expressive theories of punishment, which place at least some importance on the severity that a given punishment is perceived to have, pure retributivism concerns itself with the actual severity of punishment") (emphasis added).
115. Id. at 1037.
116. Id. at 1039 (emphasis added).
117. Id. at 1069 (emphasis added).
118. Id. at 1039 n.4, 1068 n.148;
119. see also id. at 1069 ("Kolber has argued that the actual experience of negativity is central to punishment theory, and we credit his position. According to Kolber, different individuals' experiences of punishment must be taken into account. His arguments to that end support our contentions as well, and we refer readers to those arguments.") (emphasis added). Prior to publication of this article, BBM informed us that they did not intend in their earlier article to take a position (one way or the other) on the desirability of ex post tailoring of sentences based on variance of individuals' capacity for hedonic adaptation. We thought the language we have cited and quoted indicated otherwise-that they cared about "actual" variance among offenders as much as the "typical" experience of offenders as a class. Nonetheless, if we are wrong about conveying the intended meaning of their article, we still do not think it is a mistake to address the issues of the relevance of hedonic adaptation at the ex post stage. One reason for that is because we could discern no explanation offered by BBM as to why hedonic adaptation is relevant only at the wholesale (legislative) level but not the retail level of sentencing particular offenders. For example, it is possible that BBM believe other considerations (financial or administrative costs associated with individualized tailoring for example) could counsel against using hedonic adaptation at the ex post stage. Our point, however, is that, bracketing pragmatic considerations, we could not discern a principled basis for thinking that if hedonic adaptation mattered ex ante it would not matter ex post. Of course, even if BBM correctly reject the views or implications we ascribe to them, our addressing those views seems relevant and important because we think others might nonetheless be tempted to think hedonic adaptation's variance among offenders should matter for sentencing ex post-for example, it would seem important to Kolber and persons sympathetic to his critique of retributivism. Finally, to the extent we were mistaken to read BBM as caring about the significance of hedonic adaptation both ex ante and ex post, we elaborate upon the significance of this issue (exegetical and otherwise) in a subsequent exchange scheduled to occur later in the California Law Review.
120. See BBM, Retribution and the Experience of Punishment, 98 CALIF. L. REV. (forthcoming Oct. 2010);
121. Chad Flanders, David Gray, & Dan Markel, Beyond Experience: Getting Retributive Justice Right, 99 CALIF. L. REV. (forthcoming 2011).
122. Id. at 1069.
123. Id. at 1068-69.
124. Id. at 1045-46.
125. Id. at 1046.
126. One might legitimately question the extrapolation of studies that show loss of income resulting in no net loss of happiness to cases where the loss of income is the consequence of a fine. Given the social meaning of a fine, as well as the fact that a fine is perhaps easily avoidable, the resulting unhappiness may be greater than if you simply "lost" the money, say, because your job was downsized or because you didn't know the stock market was going to tank.
127. Id. at 1070 ("Adaptation dulls the punitive effect of fines and incarceration, thereby changing the calculus by which a retributive theory must assign amounts of punishment.").
128. See id. at 1048-49 ("Interviews conducted six years later revealed additional decreases in negative affect and improvements of positive affect such that, on at least one scale, prisoners' reports fell within the normal range."). Of course, one can reasonably challenge the kind of wellbeing or happiness level at stake here.
129. See Simons, supra note 21, at n. 13 (distinguishing among hedonic, desire-satisfaction, and objective list conceptions of well-being). Moreover, someone's reports of well-being may not be the best basis for formulating government policy. We prescind from wading into this dispute since, for us, the well-being of offenders, or the measured decrease in their quality of life, is not our primary focus as retributivists.
130. See infra Part III.B.
131. See also BBM, supra note 3, at 1061 ("Having once experienced punishment (and the attendant adaptation), the criminal might understand that she will leam to accommodate the punishment she receives and that the initial shock of being thrown into prison or fined a large amount will soon dissipate.").
132. Id. at 1038 ("Prisoners are often abandoned by their spouses and friends, face difficulty finding and keeping employment, and may suffer from incurable diseases contracted during their incarceration.");
133. id. at 1062-67.
134. Id. at 1049 ("Researchers have discovered that any amount of incarceration creates a significantly higher likelihood that ex-inmates will suffer a variety of health-related, economic, and social harms with substantial negative hedonic consequences that will make adaptation extremely difficult.").
135. Id. at 1071-72.
136. Id. at 1070-71. Note that BBM aims this conclusion at pure retributivists, as distinguished from other schools of retributivist thought.
137. To be sure, Kolber believes his argument rests on an intuitively plausible supposition- that different people will have different responses to pain. But see supra note 40 (raising some questions about Kolber's assumptions).
138. See supra text accompanying notes 65-72.
139. Kolber intends to address only "prevailing" accounts of retributive theory. See Kolber, Subjective Experience, supra note 3, at 187. For what it is worth, we think Kolber's intellectual history of retributive theory is largely incorrect. While there have been some moral philosophers who identify the goal of retributive theory as justifying the infliction of suffering, the leading retributivists have not taken that path.
140. See, e.g., Finnis, supra note 52, at 91, 97-98;
141. see also Jean Hampton, The Moral Education Theory of Punishment, in PUNISHMENT: A PHILOSOPHY AND PUBLIC AFFAIRS READER 112, 128 (A. John Simmons ed, 1995) (describing "punishment" as a "disruption of the freedom to pursue the satisfaction of one's desires" and distinguishing it from the contingent pain or suffering subjectively felt by the offender).
142. See also Gray, supra note 14, at 53-60 (citing, among others, Joel Feinberg, George Fletcher, Immanuel Kant, Herbert Morris, and Carlos Nino, all of whom reject the suggestions that punishment can be conflated with suffering, an "equivocation" at the heart of Kolber's and BBM's accounts). We also give our own very brief sketch of retributivism in Part II.B.3 (tracing evolution from accounts which emphasized causing physical suffering to accounts which focused on liberty deprivation and communication), infra.
143. See generally R.A. DUFF, PUNISHMENT, COMMUNITY, AND COMMUNICATION (2001).
144. John Greenman, On Communication, 106 MICH. L. REV. 1337,1341 (2008). Greenman calls this a "useful" but "coarse" and "overinclusive" definition. Id. We believe it is sufficient for our (limited) purposes here.
145. Id. at 1344-45.
146. For our purposes, the term "expression" signifies that an action (including speech) may emit certain views or attitudes but does not require that a particular member of the audience for the action understands the basis for or purpose behind the action. The actor may intend the expression to benefit other members of the audience or even only the actor herself. To illustrate the expression-communication distinction, consider, for example, the following: when Mariah calls her brother, Nathan, at home and speaks in a language Nathan can understand to tell him, "Dad is coming home for dinner at 8 p.m. tonight," that is a communication. When Nathan writes an entry in his private diary, he is expressing his opinions without communicating them to anyone. Similarly, when the Blues Brothers drive around a neighborhood with a giant speaker strapped to their car rooftop, broadcasting details of their upcoming show to all and sundry, that too is expression. State punishment can communicate messages to offenders and express messages to the public too. The message to the public may be "do not do X," or "we are keeping our promise to punish X." But when punishments emit messages to the public, the messages have an unspecified target; it is not important that one person in particular have a rational understanding of that message. For that reason, we call those signaling goals to the public "expressive" goals instead of "communicative" goals.
147. The polity's pursuit of retributive justice is a prima facie obligation. Such duties cannot be denied as obligations, but since the determination of how and when to discharge those obligations is a prudential matter, these obligations may be set aside when other duties of justice supersede them. Phrased differently, the obligation to create and maintain institutions of retributive justice must be balanced against other social obligations and moral duties. For an instructive elaboration on reconciling competing obligations, see generally Cahill, supra note 8;
148. Berman, supra note 19. See also infra Part II.B.2.
149. John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 4-5 (1955). Rawls later changes, his focus from suffering to punishment.
150. See id. at 10 ("[A] person is said to suffer punishment whenever he is legally deprived of some of the normal rights of a citizen on the ground that he has violated a rule of law[.]").
151. Michael S. Moore, The Moral Worth of Retribution, in RESPONSIBILITY, CHARACTER AND THE EMOTIONS: NEW ESSAYS IN MORAL PSYCHOLOGY 179, 179 (Ferdinand Schoeman ed, 1987). For Moore, moral culpability is the same as desert. Id. at 181-82.
152. See, e.g., Robert Blecker, Rethinking the Death Penalty: Can We Define Who Deserves Death?, 24 PACE L. REV. 107, 123-24 (2003) (providing an example of retributivist intuitionism).
153. E.g., KARL MENNINGER, THE CRIME OF PUNISHMENT 19 (13th ed. 2007) (discussing scientific prevention approach to criminal activity);
154. cf. N.B. SEN, THE WIT AND WISDOM OF MAHATMA GANDHI 68 (1960) ("All crime is a kind of disease and should be treated as such.").
155. MORRIS, supra note 54, at 46-49.
156. See Andrew von Hirsch, Penal Theories, in THE HANDBOOK OF CRIME & PUNISHMENT 659, 666-67 (Michael Tonry ed., 1998).
157. Cf. MICHAEL MOORE, PLACING BLAME 133 (1997) ("Voluntariness of action, accountability, intentionality, causation, justification , and excuse are the primary categories in terms of which we judge someone as morally responsible and thus legally punishable.").
158. See Philip Pettit, Responsibility Incorporated, 117 ETHICS 171, 176 (2007) (discussing conditions of responsibility in context of punishment).
159. Cf. Warren Quinn, The Right to Threaten and the Right to Punish, 14 PHIL. & PUB. AFF. 327 (1985) (making this claim in the context of theory of punishment grounded in the right to self-defense).
160. C. S. LEWIS, THE PROBLEM OF PAIN 95(1944).
161. Importantly, on this view, one cannot say that the obligation to respect another as a morally responsible agent ceases as soon as a court has rendered a (correct) judgment; it must continue throughout the retributive encounter.
162. Cf. Christopher Hitchens, Fool Me Thrice, SLATE, Jan. 28, 2008, http://www.slate.com/id/2182938 (discussing Governor Clinton's execution of Ricky Ray Rector).
163. See Stephen P. Garvey, "As the Gentle Rain from Heaven": Mercy in Capital Sentencing, 81 CORNELL L. REV. 989, 1030 (1996) (claiming that, from a retributivist perspective, one only looks backward because an offender's desert is "fully congealed at the time of the crime").
164. Of course, if Jack lobotomized himself intentionally after the crime, the state might have a deterrence-based reason to punish him for his self-created condition of ill-repair notwithstanding that the punishment would at that later point lack communicative significance. Cf. Paul H. Robinson, Causing the Conditions of One's Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine, 71 VA. L. REV. 1 (1985). We treat this as an open question, however. We are admittedly unsure to what extent concerns about making sure people aren't able to "escape" their punishments can trump the fact that communication with the offender was no longer possible. This is, of course, an extreme case.
165. See supra note 19 (explaining that retributive theory might better be understood as offering a "tailored" justification rather than an "all things considered" justification).
166. See MOORE, supra note 97, at 90.
167. Kant put the point somewhat differently; he thought someone who endured punishment for his wrong was perfecting his autonomy. See IMMANUEL KANT, METAPHYSICS OF MORALS 105, 107 (Mary Gregor ed. & trans, Cambridge Univ. Press 1996) (1785). Our claim that even a repentant offender should experience equal punishment with a defiant but otherwise similarly situated offender runs contrary to the views of some other punishment theorists.
168. Cf. Jeffrie G. Murphy, Legal Moralism and Retribution Revisited, 1 CRIM. L. & PHIL. 5, 10 (2007) (noting that Joel Feinberg, Jean Hampton, and Herbert Morris embraced idea of lower punishments based on true repentance). Hampton was focused on repudiating false messages emitted by offenders toward victims; our concern expands the focus to the false messages of superiority emitted by the offender against the polity through a disrespect for democratic authority.
169. See JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 124 (1990).
170. Some have expressed this concern regarding Herb Morris's account. See, e.g., Murphy, supra note 107. For a discussion of how this account sidesteps the criticisms of Morris's "fair-play" theory of punishment, Persons and Punishment, supra note 54,
171. see Dan Markel, Misguidedly Merciful? A Reply to Professor Meyer (Sept. 3, 2009) (unpublished manuscript) (on file with authors).
172. Or, at least, so we will assume for purposes of this Article.
173. A lack of at least a threatened state response would leave the offender's claim to superiority unchallenged, a situation that a society committed to equality should wish to avoid.
174. On the point of diminishing the plausibility of an offender's claims to superiority, see generally Jean Hampton, The Retributive Idea, in FORGIVENESS AND MERCY 111 (Jeffrie G. Murphy & Jean Hampton eds, 1988);
175. Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659 (1992).
176. See Gerard V. Bradley, Retribution: The Central Aim of Punishment, 27 HARV. J. L. & PUB. POL'Y 19, 25-26 (2003);
177. see also Finnis, supra note 52, at 99-101. Of course, this does not assume that in fact everyone has the same likelihood of enjoying the same liberties; clearly, tastes and various constraints-economic, geographic, etc.-influence the patterns resulting from the provision of equal liberty under law.
178. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1126-27 (1972) (discussing the need for punitive sanctions to discourage the flouting of property and inalienability rules).
179. See MURPHY & COLEMAN, supra note 108, at 116. It could be argued that violations of all legal norms (i.e., both civil and criminal) would be sufficient to trigger the democratic selfdefense argument, making it seem that this argument proves too much in the context of a justification for punishing violations of criminal laws. It is a plausible argument. But democratic authorities get to decide which rules will be criminal or civil in nature. Consequently, one might see the violation of a criminal law as a greater and more salient form of rebellion than a violation of a rule simply establishing potential exposure to tort liability when a plaintiff brings a claim on bis own volition.
180. See id. at 124.
181. See 5 U.S.C. §3331 (2006) (setting forth the requirement that public officials swear to support and defend the Constitution).
182. In this, we rest upon accounts of democratic authority similar to those espoused elsewhere. See, e.g., Tom Christiano, Authority, in STANFORD ENCYCLOPEDIA OF PHIL., http://plato.stanford.edu/archives/spr2010/entries/ authority (last updated July 2, 2004) ("To the extent that the democratic assembly's claim of authority is grounded in the public realization of the principle of equal respect, the authority would run out when the democratic assembly makes law that undermines equal respect. This establishes, at least for one conception of democratic authority, a substantive set of limits to that authority.").
183. Cf. Jeffrie G. Murphy, Kant's Theory of Criminal Punishment, in RETRIBUTION, JUSTICE, AND THERAPY: ESSAYS IN THE PHILOSOPHY OF LAW: ESSAYS IN THE PHILOSOPHY OF LAW 83, 100 (Wilfrid Sellars ed, 1979) ("The criminal himself has no complaint, because he has rationally consented to or willed his own punishment. That is, those very rules which he has broken work, when they are obeyed by others, to his own advantage as citizen. He would have chosen such rules for himself and others in the original position of choice-").
184. Furthermore, to see the offense as a rebellion is not to say that all rebellions need be quashed with maximum resources. We might wish to empower private citizens to address some rebellions through tort and to empower the public to address other rebellions through criminal law and the administrative state. Importantly, the scarcity of social resources in a society committed to pursuing various projects of moral significance requires a principle of frugality in the use of retributive punishment, such that the state pursues and punishes only those acts that are necessary for securing the conditions conducive to human flourishing. See supra note 18 (discussing Bedau's principle of minimum invasion).
185. We borrow the phrase here. See JOHN RAWLS, A THEORY OF JUSTICE 527(1971).
186. In a recent article, Alice Ristroph accuses retributivists of a "circularity" in their argument, though it is better termed a non sequitur. Retributivists, per Ristroph, "assert that responsible agents must be punished, and that failure to punish is failure to recognize the criminal as a responsible agent." Alice Ristroph, Respect and Resistance in Punishment Theory, 97 CALIF. L. REV. 601, 627 (2009). Ristroph continues that we can recognize a person as a responsible agent without punishing him. Id. at n.132 (citing Markel, Retributive Damages, supra note 25, at 260-61). Of course this is correct and has never been denied. Our point is not that failing to punish necessarily means failure to acknowledge as a responsible agent. Instead, we note that one way of acknowledging someone's legal responsibility is by holding him responsible, and one way of holding a person legally responsible is to punish him. This does not exclude other ways of dealing with offenders that are compatible with treating them as responsible, such as in tort cases. But at the same time, reliance upon such alternatives might mean forsaking some important goods. So while we are not committed to the thesis that punishment is the only way to hold someone legally responsible, we do defend the claim that punishment realizes many goods, and that other ways of holding an offender responsible (such as tort liability) may not realize these goods.
187. See generally Markel, Against Mercy, supra note 23. As explained there, the more discretion over sentencing one confers on victims (or juries, or trial judges), the greater the likelihood of creating Type I and II errors based on vindictiveness or unwarranted compassion.
188. As Professors Allen and Laudan demonstrate, however, an "innocentristic" social concern eliminates only Type I errors, i.e., those false positives involving mistaken punishment. As a matter of social policy, we have very strong reasons, on retributive and non-retributive grounds, to be concerned with Type II error reduction - that is, reducing the false negatives associated with failing to punish the guilty - as well. Ronald J. Allen & Larry Laudan, Deadly Dilemmas, 41 TEX. TECH. L. REV. 65, 81-84 (2008);
189. cf. Daniel S. Medwed, Innocentrism, 2008 U. III. L. REV. 1549, 1558-72 (2008) (providing a qualified defense of the "innocence movement").
190. While invoking a principle of modesty may seem theoretically vague, it actually has substantial policy implications. Elsewhere, for example, Markel has argued that a commitment to modesty entails forbearing from the death penalty or shaming punishments. See Dan Markel, State, Be Not Proud, supra note 25;
191. Markel, Executing Retributivism, supra note 11;
192. Markel, Shaming Punishments, supra note 25.
193. See Hampton, Correcting Harms, supra note 112.
194. Markel, Shaming Punishments, supra note 25;
195. cf. Ezekiel 33:11 ("I have no pleasure in the death of the wicked, but that the wicked turn from his way and live."). A similar point is developed in R.A. DUFF, TRIALS AND PUNISHMENTS 27-30,79-82 (1986).
196. See NOZICK, supra note 26, at 377.
197. Thus, we are not concerned, say, with a parent's punishment of his or her child, or with God's punishment of sinners.
198. See Markel, State, Be Not Proud, supra note 25, at 410 n.13 (providing citations to Supreme Court cases that crudely equate retributivism with revenge, the desire to make criminals suffer, or both).
199. See also JAMES FITZJAMES STEPHEN, LIBERTY, EQUALITY, FRATERNITY 152 (R. J. White ed., Cambridge Univ. Press 1967) (1873) ("[T]he feeling of hatred and the desire of vengeance ... are important elements of human nature which ought in such cases to be satisfied in a regular public and legal manner."); .
200. see also OLIVER WENDELL HOLMES, THE COMMON LAW 41-42 (1881) ("If people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution.").
201. We qualify this discussion by reference to ideal types because there have often been cultures or social norms involving revenge that fall somewhere in between. For an illuminating and entertaining discussion of this cultural history, see WILLIAM IAN MILLER, EYE FOR AN EYE (2006).
202. See also Chad Flanders, Retribution and Reform, 70 MD. L. REV. (forthcoming 2010) (distinguishing ideal accounts of retribution from the practice of retribution).
203. NOZICK, supra note 26, at 366-68.
204. This is not to deny that retributive punishment may result in third-party harms, nor to suggest that revenge is always targeted at third parties close to the offender. The point is narrow: retributive punishment does not aim to harm third parties, and in some cases, the kind of retribution imposed should take into account innocent third-party harms. See, e.g., Dan Markel, Jennifer M. Collins & Ethan J. Leib, Criminal Justice and the Challenge of Family Ties, 2007 U. III. L. REV. 1147 (2007) (urging greater use of time-deferred incarceration to mitigate innocent third-party harms).
205. As we note later, see infra Part IV, the subjectivist's interest in suffering may make her position more closely aligned with an interest in revenge.
206. An avenger who sees his antagonist experience suffering from some other source, such as disease, may decline to follow through on the revenge, whereas the state's retributive interest would not be satisfied merely by having an offender suffer.
207. This notion might be enhanced for some through the thought experiment of the "secret and fair punishments." See Markel, Shaming Punishments, supra note 25, at 2211-12.
208. Cf. MOORE, supra note 97, at 90.
209. For discussions of this principle, see MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW 233 (2004) ("Punishments may treat the act very harshly, while still expressing the sense that the person is worthy of regard and of ultimate reintegration into society.");
210. JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN EUROPE AND AMERICA 51 (2003) (discussing Beccaria's view that punishment should focus on acts, not offenders);
211. James Q. Whitman, Making Happy Punishers, 118 HARV. L. REV. 2698, 2711 (2005)
212. (reviewing NUSSBAUM, HIDING FROM HUMANITY, supra, and noting Christian and liberal roots of person/act distinction).
213. Recent debates over the propriety of "shaming punishments" have also centered on this distinction. With shaming sanctions, it is hard not to convey the impression that the whole person is tainted, corrupted, and "lower," rather than that he has just done a bad thing, which must be condemned. See generally Markel, Shaming Punishments, supra note 25.
214. This may be unfair to dogs. GEORG W.F. HEGEL, PHILOSOPHY OF RIGHT 71(1821).
215. ALASDAIR MACINTYRE, AFTER VIRTUE 188-89 (2d ed, U. Notre Dame Press 1984).
216. See Cahill, supra note 8, at 834.
217. See FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALS 80-81 (Walter Kaufmann ed, Walter Kaufmann & R. J. Hollingdale trans. Random House 1989) (1887) (discussing the multitude of purposes punishment can serve).
218. This point has been trenchantly emphasized by Cahill, supra note 8, at 820.
219. Berman, supra note 19, at 278-84.
220. See sources cited supra note 51.
221. See JACOB ADLER, THE URGINGS OF CONSCIENCE: A THEORY OF PUNISHMENT 80 (1991) (discounting the view that punishment's defining characteristic is pain);
222. see generally TED HONDERICH, PUNISHMENT: THE SUPPOSED JUSTIFICATIONS REVISITED 28 (1969) (noting objection that merely saying punishment is fitting or deserved is not to give anything "that could count as a reason for punishment").
223. Cf. Berman, Punishment and Justification, supra note 19, at 270 (rehearsing the objection that "the proposition that wrongdoers deserve to suffer on account of their blameworthy wrongdoing is mere ipse dixit," but concluding that "this charge does not stick").
224. See, e.g., W.D. Ross, THE RIGHT AND THE GOOD 57-58 (1930) ("Most intuitionists would take the view that there is a fundamental and underivative duty to reward the virtuous and to punish the vicious.").
225. See supra note 51 ;
226. see also Douglas Husak, Holistic Retributivism, 88 CALIF. L. REV. 991, 994 n.15 (2000) ("I am not confident that what wrongdoers deserve is punishment. What wrongdoers deserve is to suffer some hardship or deprivation for their wrongdoing that may or may not be achieved by punishment.").
227. See the discussion in Ross, supra note 148, at 56.
228. See also Mike Jay, The Day Pain Died, Bos. GLOBE, June 7, 2009 (Ideas), at 1 (explaining the nineteenth-century view that expressed skepticism toward the introduction of anesthesia because the experience of pain was thought critical to a life well-lived).
229. BBM, supra note 3, at 1056.
230. See, e.g., Morris, supra note 54;
231. A. J. Skillen, How to Say Things with Walls, 55 PHIL. 509, 521-22 (1980);
232. Simons, supra note 21.
233. See generally JOHN RAWLS, POLITICAL LIBERALISM 9-15 (1993). The point here is not to fully defend Rawls's distinction between the political and the metaphysical or comprehensive, but rather simply make the more modest point that CCR is not "comprehensive," something which may help to distinguish it from other, more metaphysically fraught versions of retributivism. This is something we see as an advantage, but others may not.
234. See id. at 155-56.
235. See id. at 154-56.
236. E.g., KANT, supra note 43, at 102-03 ("[I]t is possible for punishment to be equal in accordance with the strict Law of retribution only if the judge pronounces the death sentence. This is clear because only in this way will the death sentence be pronounced on all criminals in proportion to their inner viciousness ....").
237. See, e.g., Russ Shafer-Landau, Retributivism and Desert, 81 PAC. PHIL. Q. 189, 189 n.1 (2000) (providing citations to the relevant philosophical literature);
238. Owen McLeod, Desert, in
239. STANFORD ENCYCLOPEDIA OF PHIL, http://plato.stantord.edu/entnes/desert (last updated Nov 12, 2008).
240. These political values are, of course, also moral values. But they are moral values that are thought to be implicit in the public political culture of a democracy. In this respect, we update the familiar distinction between moral retributivism and legal retributivism so that it now signifies the difference between political versus comprehensive forms of retributivism.
241. See John Rawls, Justice as Fairness: Political not Metaphysical, 14 PHIL. & PUB. AFF. 223, 230 (1985) ("[J]ustice as fairness deliberately stays on the surface, philosophically speaking."). Rawls is quite clear even in his earlier work that such metaphysical ideals of desert are not the appropriate basis for exercising the coercive power of the state.
242. JOHN RAWLS, A THEORY OF JUSTICE 273 (1971) ("There is a tendency for common sense to suppose that income and wealth, and the good things in life generally, should be distributed according to moral desert. Justice is happiness according to virtue . . . . Now justice as fairness rejects this conception . . . . A just scheme . . . answers to what men are entitled to; it satisfies their legitimate expectations as founded upon social institutions. But what they are entitled to is not proportional to nor dependent upon their intrinsic worth."). The account in the text, albeit brief, stands as a short summary of our position regarding the debate between Professors Jean Hampton and Jeffrie Murphy, among others, over the precise character of punishment in a liberal democracy. It also points to a compromise of sorts for persons torn between perfectionist and anti-perfectionist liberal worldviews. Agreeing with Murphy, we see punishment as needing to have a political, and not a comprehensive, justification and shape.
243. Jeffrie G. Murphy, Retributivism, Moral Education, and the Liberal State, 4 CRIM. JUST. ETHICS 3, 3-11 (1985). Agreeing with Hampton, we see this account as unproblematically retributiveour emphasis remains, after all, on the core claim that punishment for legal offenses is internally intelligible assuming that the content and application of the laws is suitably liberal and fairly enforced. But pace Hampton, retributivists need not be thoroughgoing perfectionists and need not abandon their commitment to a Rawlsian-style political liberalism that emphasizes reasons for punishment that are grounded in the state's legal grievances against offenders who flout the reasonable legal norms established and enforced fairly by the polity.
244. See generally Jean Hampton, How You Can Be Both a Liberal and a Retributivist: Comments on Legal Moralism and Liberalism by Jeffrie Murphy, 37 ARIZ. L. REV. 105 (1995). Indeed, at least one of us would say that given the risks, costs, and consequences associated with error and abuse in the criminal justice system, it might be permissible or desirable to promote a greater intolerance of perfectionism within the criminal justice system while giving the state more democratic (or perfectionist) flexibility outside the criminal justice system. By this logic, criminal law and enforcement (including sentencing) must hew closer to the core liberal values of individual liberty and equality under the law (e.g, not discriminating on the basis of family status or religious affiliation) than, say, tax law or social policy, which might be used to create a civic culture that promotes certain values (related to, for example, patriotism, volunteerism).
245. An illustration of this perspective can be viewed in DAN MARKEL, JENNIFER M. COLLINS & ETHAN J. LEIB, PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES (2009) (taking the view that use of family status in the criminal justice system should be viewed with greater caution than in other areas of social policy).
246. Indeed this should help dislodge any quick sense of a natural relationship between retributive justice and lex talionis. We are not committed at all to lex talionis but it is worth noting how capacious even the lex talionis approach can be. See generally Jeremy Waldron, Lex Talionis, 34 ARIZ. L. REV. 25 (1992).
247. Anthony Duff makes a related point about punishment being concerned with crimes as primarily wrongs implicating public concern: "What matters about crimes is not just their seriousness but their character as public wrongs. What matters about punishments is not just their severity but their character as responses to such wrongs." R.A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 139 (2001).
248. As we argue below in Part IV, there may not be a meaningful difference between allowing offenders to "choose" their punishment and tailoring punishments to meet their various subjective tastes.
249. For some initial thoughts on the relationship between the CCR and the Eighth Amendment; however, see Markel, Executing Retributivism, supra note 11, at 1205-21.
250. See Chad Flanders, Shame and the Meanings of Punishment, 54 CLEV. ST. L. REV. 609, 631 (2006) ("Once there is a certain baseline understanding as to what is an appropriate punishment, citizens work off that baseline and view any punishments below the baseline as condoning the crime. Furthermore, when a particularly egregious crime occurs and citizens believe it deserves a harsh punishment, they will again consult the baseline and demand that the crime be punished in a way that is greater than the typical sentence. Over time the baseline naturally creeps upward, as more people demand that a particular crime be punished more severely than others. Eventually, the baseline gets redefined, so that the next time an egregious crime is committed, citizens will seek a punishment that exceeds the new baseline.");
251. but cf. Darryl K. Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223, 248 (2007) ("There appears to be little other empirical work examining legislatures' action on criminal law bills, but these data suggest legislatures routinely decline to enact proposals that fit the stereotype of politically irresistible proposals for expanded liability and harsher sentences.").
252. Accordingly, banded or limiting retributivism is a possible structure for establishing sentencing floors and ceilings with respect to punishing one person. But once we're in the business of meting out condign punishment across persons, the legislature must protect the regime of equal liberty under law. And to do that well, some use of structured sentencing that helps establish both objective and comparative proportionality is important also. To be clear, we do think comparative proportionality is normatively derivative of objective proportionality, but we are realistic enough to see that getting agreement on objective proportionality (even banded or limiting objective proportionality) is difficult in pluralistic democracies and so there will still have to be substantial attention paid to the issues of comparative proportionality too - to help ensure that similarly situated offenders are treated even-handedly by the state.
253. Cf. Gabriel J. Chin, Unjustified: The Practical Irrelevance of the Justification/Excuse Distinction, 43 U. MICH. J. L. REFORM 79, 86 (2009) (speaking of defenses, "at a certain level of specificity, the force of the theory stops dictating details, which can and must be supplied by courts or legislatures").
254. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 103 (2d ed. 1986).
255. See Flanders, supra note 131.
256. In other words, the offender had to have been in a position where he did understand (or could have understood, based on conditions within his control) his actions and their moral risks vis-à-vis unlawfulness.
257. These questions trigger matters of appropriate procedure that we leave for another day, and that other scholars have begun to contemplate. See, e.g., Wilkins, supra note 26.
258. O. Henry, The Cop and the Anthem, in THE RANSOM OF RED CHIEF AND OTHER O. HENRY STORIES FOR BOYS 143 (Franklin J. Mathiews ed, 1928);
259. Kolber, Subjective Experience, supra note 3, at 205. In the story, an impoverished man positively sought out incarceration as punishment because at least it would provide him with a warm meal and a place to stay for the night.
260. See DUFF, supra note 127, at 27; NOZICK, supra note 26.
261. Kolber, Subjective Experience, supra note 3, at 204.
262. It is possible that Garvey, supra note 103, was speaking for some retributivists, but we cannot discern from the context who, among any contemporary retributive theorists, would deny the significance of present competence as a prerequisite for the legitimacy of retributive punishment. Various contemporary retributive theorists recognize that in fact retributive justice is not solely "backward-looking." Rather, as John Finnis, and Gerard Bradley have noted, supra note 113, institutions of retributive justice play an important role in maintaining regimes of equal liberty over time in states.
263. Panetti v. Quarterman, 551 U.S. 930, 973 (2007) (Thomas, J, dissenting). Of course, competence is not an all-or-nothing feature of people. There will be gray areas and tough cases. But we feel it is within the competence of the legislature and the courts, as assisted by experts in human psychology, to draw these lines - to decide who is fit for the communication punishment provides and who is not.
264. Kolber, Comparative Nature, supra note 3, at 1596.
265. More specifically, the nature of the punishment for a particular offense should also be determined ex ante through legislative deliberation or ratification of expert-agency decision making. There should be opportunity for legislatures or sentencing commissions to revise punishment levels or methods if a previously unconsidered factor is now at stake.
266. See Kolber, Comparative Nature, supra note 3, discussed supra Part I.A.2. Recall that, by Kolber's logic, placing Wealthy Offender in the same size cell as Poor Offender constitutes a harsher punishment for Wealthy than it does for Poor.
267. See id. at 1566 ("It is the amount by which we change offenders' circumstances that determines the severity of their sentences.").
268. Of course, if the offender is not a fit interlocutor for punishment, that would not preclude some other form of social self-defense mechanism or rehabilitative experience.
269. Both Professor Kolber and one of his critics, Professor Simons, agree that more gradation in fines is a desideratum. See Kolber, Subjective Experience, supra note 3, at 226;
270. Simons, supra note 21, at n. 11.
271. Such jurisdictions are typically found in Western Europe. U.S. DEPT. OF JUSTICE BUREAU OF JUSTICE ASSISTANCE, HOW TO USE STRUCTURED FINES (DAY FINES) AS AN INTERMEDIATE SANCTION 3 (1996), available at http://www.ncjrs.gov/pdffiles/ 156242.pdf.
272. See 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 377 (1807) ("The quantum, in particular, of pecuniary fines neither can, nor ought to be ascertained by any invariable law. The value of money itself changes from a thousand causes; and, at all events, what is ruin to one man's fortune, may be matter of indifference to another's.");
273. Ronen Perry, The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory, 73 TENN. L. REV. 177, 188 n.57 (2006) ("Imposing a $1,000 fine on a hard working proletarian may be enough as punishment for accidentally injuring the property of another, but it will not be enough if the injurer is a very wealthy man who will not feel the loss of $1,000.").
274. See Markel, Executing Retributivism, supra note 11, at 1206-12;
275. Markel, State, Be Not Proud, supra note 25, at 460-62.
276. Markel, State, Be Not Proud, supra note 25, at 464-68. We recognize that one might value dignity of persons independent of one's retributive commitments.
277. Jeffrie G. Murphy, Cruel and Unusual Punishments, in RETRIBUTION, JUSTICE, AND THERAPY: ESSAYS IN THE PHILOSOPHY OF LAW 223, 233 (1979). Murphy's concern was the violation of the dignity of the offender, not the polity's; our own view would consider both- but our reasons for disagreement are not germane to the general thrust of this Article, so we will leave it at that.
278. To clarify, however, we believe the state may use measured physical force or restraints to protect its agents and others from an offender whose words and deeds signal a readiness for violence.
279. Kolber, Comparative Nature, supra note 3, at 1602-03.
280. Id. at 1596 (footnote omitted).
281. On the nature of the "carceral burden" a state must carry in the context of confinement and intolerable conditions, see Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. REV. 881, 911-23 (2009).
282. See generally id; cf. Farmer v. Brennan, 511 U.S. 825, 826 (1994) (holding that prison officials have a duty under the Eighth Amendment to provide humane conditions for incarcerated prisoners).
283. See Gray, supra note 14, at 38.
284. Kolber, Comparative Nature, supra note 3, at 1603 ("Similarly, the sophisticated state actors who establish and administer the criminal justice system are aware of many of the liberty deprivations and inflictions of emotional distress associated with incarceration. They know about these harms, even if they are unintended. Retributivists who seek to justify imprisonment cannot artificially carve out foreseen harms from the scope of harms that require justification."). BBM, by calling attention to the foreseeable difficulties associated with an ex-prisoner's reentry to society, are implicitly making the same kind of claim. We deal with their version of the objection later in the paper.
285. See infra Part IV.A.3. As the quotation above shows, Kolber considers the differing experiences offenders face in prison, and the state's responsibility associated with knowing about this.
286. We could imagine exceptions of course. To borrow Professor Sharon Dolovich's helpful term, if the state's "institutional cruelty," that is, its failure to discharge its carceral or punitive obligations in a humane and safe manner, led to the "breaking" of the offender (a result we condemned in Part III), we could imagine that the state has an obligation to try to repair or restore the offender to some normatively acceptable baseline condition before it can proceed with the initially intended and authorized justified punishment. See Dolovich, supra note 189, at 92428. Indeed, we could imagine egregious and irreparable situations of "breaking" an offender such that if the state did so, it loses its warrant to permissibly continue punishing that person. And if the polity breaks offenders regularly through its policy or practices, then the state could plausibly be viewed as badge-wearing criminals.
287. Kolber, Comparative Nature, supra note 3, at 1601 ("One might grant that there are substantial variations in people's baseline conditions that we ignore at sentencing. Nevertheless, one might argue, we are permitted to deviate from proportionality because people have advance notice of the sorts of punishments they face. People are aware or should be aware of their baseline conditions as well as the conditions that they would likely face in prison. So, even though a wealthy person may be punished more harshly than a poor person when they commit crimes of equal blameworthiness and receive sentences of equal duration, the wealthy person foresaw or could have foreseen his augmented penalty.").
288. Id.;
289. compare Ernest van den Haag, The Ultimate Punishment: A Defense, 99 HARV. L. REV. 1662, 1668 (1986) (stating that all that matters vis-à-vis the fairness of the death penalty is that the sanction was announced in advance as a possible sanction in response to certain crimes);
290. with Larry Alexander, Consent, Punishment, and Proportionality, 15 PHIL. & PUB. AFF. 178, 179 (1986) (noting that fair notice or consent arguments cannot obviate concerns of proportionality).
291. Kolber, Comparative Nature, supra note 3, 1601-02;
292. Kolber, Subjective Experience, supra note 3, at 210.
293. See generally Frase, supra note 18.
294. See also supra Part II.B.5.
295. Thus, if an offender is having a kidney transplant tomorrow, and will die if sent to prison today after being convicted, there is a reason to put off his sentence compared to a codefendant who is healthy. The different treatment is responsive, however, to objective medical conditions, not differences in temperament or a goal to produce a certain amount of suffering.
296. This is an oversight BBM replicate by uncritically incorporating Kolber's analysis (a point we elaborate shortly). See BBM, supra note 3, at 1073 n.167.
297. Kolber, Comparative Nature, supra note 3, at 1602-03.
298. See generally Jeremy A. Blumenthal, Affective Forecasting and Capital Sentencing: Reducing the Effect of Victim Impact Statements, 46 AM. CRIM. L. REV. 107 (2009);
299. Timothy D. Wilson & Daniel T. Gilbert, Affective Forecasting, 35 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 345 (Mark Zanna ed, 2003).
300. Bayern, supra note 3, at 13-14 n.21 (challenging Market's communicative account of retribution).
301. If suffering is suffering, why shouldn't private citizens go ahead and inflict "punishment" on the offender, saving the state its time and resources? Cf. James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 YALE L.J. 1055, 1087-92 (1998) (noting various difficulties with putting punishment in the hands of citizens).
302. Bayern, supra note 3, at 2; see also text accompanying supra note 56.
303. Nozick, supra note 26, at 370-71.
304. Thus it does not matter that private imprisonments might be cheaper (or even more effective at deterring the offender). The point is that privately imposed hardships communicate a different message than state-authorized punishment does. Indeed, in many such cases, the privately inflicted sanction is a crime that should itself be prosecuted.
305. Alon Harel, Why Only the State May Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions, in CRIMINAL LAW CONVERSATIONS 129, 133 (Paul H. Robinson, Stephen P. Garvey, Kimberly Kessler Ferzan eds, 2009).
306. Cf. Alan H. Goldman, Toward a New Theory of Punishment, 1 LAW & PHIL. 57, 61 (1982) ("[I]f the purpose of the state were to proportion reward and suffering to moral merit, to be fair it would have to do so over entire lifetimes, and not in reaction to specific criminal acts.").
307. In some respects, we might say that if you think what the Supreme Court did in Williams v. New York, 337 U.S. 241 (1949), is permissible (i.e., permitting allegations of misconduct not proven beyond a reasonable doubt to serve as the basis for the execution of an offender), then you by definition are not a (legal) retributivist, since the predicate for enhanced punishment is not proven in a manner consistent with the criminal law's fact-finding process, which requires a higher threshold of reliability. Of course, we do not doubt that there are legal scholars who think good deeds or unproven misconduct ought to count for non-retributive reasons. We also readily admit that some might try to invoke a "just deserts" type of argument to suggest that features of a person's life unrelated to crime or criminal history should weigh in at sentencing, such as military service or charitable giving.
308. See generally Carissa Byrne Hessick, Why Are Only Bad Acts Good Sentencing Factors?, 88 B.U. L. REV. 1109 (2008) (providing citations and overview of the literature on prior bad acts with discussion of retributivists both for and against consideration of past deeds).
309. For an outstanding discussion, see Kevin R. Reitz, Sentencing Facts: Travesties of Real-Offense Sentencing, 45 STAN. L. REV. 523 (1993). In this respect, we think Professor Simons did not go far enough when he argued that, per retributivism, the state "need not" engage in global character judgments. We think the state ought not do so.
310. See Simons, supra note 21, at 4 ("[The state] need not monitor the flow of burdens and benefits in the offender's life and make appropriate corrections so that when he meets his maker, cosmic justice has been done.").
311. See Kolber, Comparative Nature, supra note 3, at 1591.
312. See id. at 1574-75.
313. Bayern, supra note 3, at 13-14 n.21 (critiquing Markel's communicative account of retribution and suggesting that the state's communication of condemnation can be decoupled from the experience of hardship endured).
314. See also supra note 70.
315. BBM, supra note 3, at 1073 n.167.
316. Id. at 1038.
317. See id. at 1073 n.167 ("[I]t 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 post-release effects of imprisonment are at least known to juries, judges, and legislators, even if those parties do not incorporate them into their own calculations.").
318. As we noted earlier, Kolber makes this same point. Kolber, Subjective Experience, supra note 3, at 211-13.
319. To be sure, the state cannot disclaim responsibility for unconstitutional torts that occur during supervised release conditions or other deprivations imposed on offenders outside of prison, but we don't think any retributivist would deny that either.
320. We do not mean to be glib here. Clearly, too many crimes have punishments that exceed any rational analysis. And insofar as states impose collateral consequences retroactively, we agree that this would undermine our foreseeability claim. Needless to say, we do not endorse the retroactive imposition of collateral consequences, nor their uncritical extension into all walks of life for offenders. See infra note 222. But whatever our disagreements with current practice, and there are many, they don't necessitate or even suggest that the best strategy for amelioration is through thoroughgoing focus on individual idiosyncrasies or experiences.
321. Of course, we think the state emphatically cannot abjure its share of moral responsibility for the various ways in which its archipelago of imposed collateral sanctions affect the well-being of offenders. Many of these residency, voting, occupational, educational, and registration restrictions (or requirements) are unduly onerous and poorly conceived, reasonably leading one to conclude that a sizeable share of the offender's post-prison hardships might fairly be characterized as authorized and intended burdens that the state must account for, just like the propensity of some states to impose unduly long sentences. Importantly, though, our disputes with current practices here do not affect our argument related to the bare relevance of offenders' idiosyncratic subjectivity or prior baselines or capacity for hedonic adaptation.
322. See, e.g., BBM, supra note 3, at 1039 n.4
323. (citing Kolber, Subjective Experience, supra note 3).
324. This is odd because BBM carve out space for addressing the implications of their claim for "expressive" theories of punishment, under which heading they recognize that the state's interest in punishment is '"not just a way to make offenders suffer; it is a special social convention that signifies moral condemnation.'" BBM, supra note 3, at 1076
325. (quoting Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 593 (1996)).
326. But of course, that second clause is the nub of retributive theories, a point well-made in Ken Simon's reply to Kolber. See Simons, supra note 21, at 8 (noting that retributivists might view incarceration as a distinctive way to deny offenders from enjoying outside relationships, in which case whether the offender experiences "suffering" or harm is beside the point.). As Professor Simons notes regarding Kolber, "Prison excludes the inmate from valuable experiences and opportunities that he might otherwise have had on the outside. Such punishments are not primarily designed to cause pain or negative psychic reactions, though these effects may occur as a consequence of the deprivation."
327. Id.
328. Gray, supra note 14.
329. Or consider the story of Shon Hopwood, who used his time in prison to become an "accomplished Supreme Court practitioner." Adam Liptak, A Mediocre Criminal, But an Unmatched Jailhouse Lawyer, N.Y. TIMES, Feb. 8, 2010, at A12 (discussing successful jailhouse lawyer who flourished in the prison law-library and now plans to attend law school).
330. See Simons, supra note 21.
331. See supra note 133.
332. In other words, the claims of potential spillover harms do not serve as "cancelling" reasons, to use Joseph Raz's terminology. JOSEPH RAZ, PRACTICAL REASON AND NORMS 27 (2d ed. 1990) (describing the difference between conflicting reasons and cancelling reasons).
333. See H.L.A. HART & TONY HONORÉ, CAUSATION IN THE LAW 114-15 (2d ed. 1985) (discussing the need to select the proximate cause from an otherwise "infinite series of necessary conditions"). For what it is worth, we think that diseases or disabilities contracted by an offender during punishment on account of poor or squalid conditions of confinement raise different issues. They are not authorized punishments but repair for these conditions might be necessary under tort principles and injunctive relief if the state failed to carry its carcéral burden in a safe and secure manner.
334. BBM, supra note 3, at 1077. BBM are referring to "expressivist" theories of punishment. The CCR is not an expressivist theory, which is largely an instrumental view of punishment. Instead it is, as described earlier at the outset of Part II, communicative. Retributive punishment thus both communicates condemnation to the offender and in so doing it expresses society's disapproval to others, but not merely for the sake of expression to the public.
335. See id.
336. See PATRICK DEVLIN, THE ENFORCEMENT OF MORALS 66-82 (1965).
337. H.L.A. Hart characterized Lord Devlin's view that punishment may be used for "venting" as "uncomfortably close to human sacrifice as an expression of religious worship." H.L.A. HART, LAW, LIBERTY, AND MORALITY 65-66 (1963).
338. BBM, supra note 3, at 1068.
339. Id.
340. See supra note 52 (adverting to John Finnis's view on the matter).
341. BENTHAM, supra note 33, at 283.
342. Indeed, even the very term suffering proves too ambiguous in this context. Someone may "suffer" from paper cuts or basketball injuries. One might suffer from all sorts of causes. See, e.g., GEORGE ORWELL, 1984 286 (1949) ("The worst thing in the world . . . varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by impalement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal.").
343. See, e.g., Morse, supra note 40 (discussing the minimal competence required to be a law-abiding member of society).
344. We might note here that this emphasis on the objective equality of persons is not unique to the punishment phase, as several friends have noted to us. Ideas of the "reasonable person"- ubiquitous in the substantive criminal law- are for the most part objective, relying on a standard of competence and knowledge to which citizens are expected to adhere.
345. For reasons we explain below, however, we are skeptical about such claims.
346. Morris, supra note 54, at 478.
347. For an updated and deep look at the relationship between distributive and retributive justice, see Stuart P. Green, Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders, 2009 U. CHI. LEGAL F. (forthcoming Oct. 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1511732.
348. See GEORGE ORWELL, ANIMAL FARM 118 (1945) ("All animals are equal, but some are more equal than others.").
349. This version of equality may seem excessively formal, like the liberty that the rich and the poor share in both being forbidden from sleeping under a bridge. We disagree. To be sure, the political community envisioned by retributive justice is in one sense a formal community: it is a community organized around securing the conditions for human flourishing in part by deliberating, legislating, obeying, and enforcing the law. But it is also substantive, because underneath the laws is a vision of autonomous people united in support of an ideal of equality under the law. We think it is worth embracing, and trying, however imperfectly, to live up to this a substantive, "thick" version of community and equality. See also Christiano, supra note 118.
350. For a particularly sophisticated statement of the subjectivist view, see L.W. SUMNER, WELFARE, HAPPINESS, AND ETHICS (1996).
351. For a basic overview and contrast between various subjective and objective theories, see DEREK PARFIT, REASONS AND PERSONS App. I (1984).
352. See, e.g., CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 164-67 (1993) (providing an overview and critique of subjective welfarism);
353. MARTHA C NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 116-17 (2000) (describing subjective welfarism).
354. For a discussion of various objective views, see AMARTYA SEN, THE IDEA OF JUSTICE, chs. 11-12 (2009) (comparing equality of resources with equality of capabilities).
355. For a good survey of objections to subjective welfarism, see NUSSBAUM, supra note 247, at 119-21.
356. Ronald Dworkin, What is Equality? Part I: Equality of Welfare, 10 PHIL. & PUB. AFFAIRS 185, 229 (1981).
357. G. A. Cohen, Expensive Tastes and Multiculturalism, in MULTICULTURALISM, LIBERALISM, AND DEMOCRACY 80, 84-85 (Rajeev Bhargava et al. eds, 1999).
358. Interestingly, in a footnote, Kolber indicates that he may be willing to bite the bullet. Kolber, Subjective Experience, supra note 3, at 233-34 n.144 ("One may think that equality of distribution should be understood on grounds of subjective welfare . . . .").
359. See G. A. Cohen, On the Currency of Egalitarian Justice, 99 ETHICS 906, 923-24 (1989) (distinguishing between chosen and unchosen expensive tastes).
360. See Douglas N. Husak, Already Punished Enough, 18 PHIL. TOPICS 79, 82 (1990) ("Few suggestions are more distasteful to the public than that the privileged, in virtue of their elevated status, should be punished less severely than the disadvantaged.").
361. It may be misleading to call this an objection to Kolber's position, because it is unclear what Kolber's affirmative commitments ultimately are. He may simply be drawing out the implications of a view he believes others may be committed to once they take subjectivity seriously.
362. Kolber, Subjective Experience, supra note 3, at 231.
363. Id. ("Giving Hoity-Toity a shorter sentence or better accommodations than Insensitive is not favoritism but rather is precisely what is required to treat them equally . . . .").
364. Id. at 231-32.
365. Kolber concedes as much. Id. at 232 n.142 ("Yet, it would be very coincidental if Hoity-Toity's augmented blameworthiness . . . make[s] him deserve augmented experiential distress that ends up giving him his just deserts when he serves the same term as Insensitive.")
366. Id. at 232.
367. We recognize, of course, that many jurisdictions entrust sentencing judges (or in some cases, parole boards) with vast discretion to make widely disparate judgments for similarly situated offenders. In this respect, we acknowledge that our account is in no way interpretive of our current institutions but rather provides a critical guidepost against which to measure our occasionally benighted institutions of criminal justice.
368. Id. at 235.
369. See Elizabeth S. Anderson, What Is the Point of Equality?, 109 ETHICS 287, 293 (1999).
370. Or so we will assume here. Our interlocutors do not take up this issue, so we will assume that the criminal offenses leading to punishment required some voluntary action and culpable state of mind.
371. Of course, there are limits to what punishment offenders can be subject to, even when they have chosen their crime. These limits include, among other things, those we have already discussed previously in this article.
372. Morris, supra note 54, at 486.
373. Cf. PHILIP ZIMBARDO, THE LUCIFER EFFECT: UNDERSTANDING HOW GOOD PEOPLE TURN EVIL 30ff & 352 (2007) (describing the infamous "Stanford Prison Experiment," where individuals role-played as prisoner guards and inmates; invariably, the "guards" became brutal and abusive to the "inmates").
374. Cf. Lawrence H. Davis, They Deserve to Suffer, 32 ANALYSIS 136 (1972).
375. Cf. WHITMAN, HARSH JUSTICE, supra note 137, at ch. 3.
376. Here we might usefully examine the policy of Captain Frank Townshend, as reported by Robert Blecker: [Inside Lorton Central Prison] a man's crime is virtually ignored. Officers routinely deny that they treat a prisoner with an eye to his record, to his crime, to his "evil" choice that brought him to prison. Captain Frank Townshend . . . insisted that he never looks at a man's record when he deals with him lest he be "prejudiced. Everyone is entitled to the same treatment here, regardless of what they did to get here. What a man is in here for is not our concern." Robert Blecker, Haven or Hell? Inside Lorton Central Prison: Experiences of Punishment Justified, 42 STAN. L. REV. 1149, 1171 (1990).
377. To be clear, we do not think that any subjectivists of the sort we engage would necessarily endorse this result. We only flag it as a risk that seems more likely to arise with subjectivist accounts of punishment than with other ones.
378. ORWELL, 1984, supra note 238, at 283.
379. See Kolber, Subjective Experience, supra note 3, at 213.
380. See Kolber, Subjective Experience, supra note 3, at 208 & n.71 ("Those punished by disapproval are not successfully punished unless they are at least aware of their community's disapproval. Furthermore, the extent to which they are punished will vary based on their different reactions to expressions of disapproval. Some are prone to react strongly to feelings of shame, while others are not."). Again, it bears repeating that the offender who is incapable of receiving any message (because he or she is incompetent) is not a fit subject for punishment. Interpreted this way, we have no quarrel with Kolber's claim that successful punishment requires that the offender be "aware" of his punishment, or more precisely, that he or she be capable of rationally understanding it as a punishment for a prior crime.
381. If the punishment is designed to perform communicative work, then whatever apparent "internalization" that happens prior to the completion of the punishment cannot be relied upon as an aspect of intentional punishment. That is logically no different than Nozick's example of the murderer in the canyon killed by the avalanche accidentally started by a witness to the murder. NOZICK, supra note 26, at 376. The death of the murderer in that situation is not a form of state retribution. The situation in prison (or death row) is only different in that there has been an adjudication that involves some judgment of guilt. But there has not yet been the completed punishment called for by the legislature in conjunction with the court. Because the state's intentions have to line up with its causal actions to convey the correct social meaning, it cannot use the defendant's post-conviction but pre-punishment completion attitude as evidence of the success of the communicative punishment; after all, the punishment intended to be used as a communicative device has not yet been fully imposed and completed.
382. For what it is worth, we think that range should be relatively narrow because of our fear that broad ranges, coupled with unchecked discretion, will create various Type I and Type II errors compared to other offenders, for reasons that might be random, arbitrary, or discriminatory, and thus also in violation of certain constitutional norms. See generally Dan Markel, Luck or Law? The Constitutional Case Against Indeterminate Sentencing (unpublished manuscript) (on file with authors).
383. But see supra note 261. To be sure, we have been assuming throughout that society can plausibly establish a reprehensibility scale that reflects severity of the offense, criminal history, and other related sentencing factors, and then match that scale to a different scale encompassing and ranking various punishment options.
384. Kolber, Subjective Experience, supra note 3, at 188;
385. see supra notes 39-40 and accompanying text.
386. Kolber, Subjective Experience, supra note 3, at 235.
387. Id.
388. Id.
389. Id.
390. See supra note 49 and accompanying text.
391. Kolber, Subjective Experience, supra note 3, at 206-07.