Punishment as suffering

Vanderbilt Law Review

Volumn 63, Issue 6, 2010, Pages 1619-1693

  Gray, David ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 78649548185     PISSN: 00422533     EISSN: None     Source Type: Journal    
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References (678)

1. See John Bronsteen, Christopher Buccafusco, & Jonathan Masur, Happiness and Punishment, 76 U. Chi. L. REV. 1037, 1037 (2009) ("When the state punishes a criminal, it inflicts suffering.")
2. Adam Kolber, The Subjective Experience of Punishment, 109 COLUM. L. Rev. 182, 212-13 (2009) ("[T]he subjective disutility of punishment is not some mere aftereffect of punishment. Rather, it is largely or entirely the punishment itself. Subjective disutility is a necessary component of retributive punishment and constitutes, if not the sole reason for retributive punishment, certainly a major part of it."). This Article argues the contrary. While original, it is not alone. Among others, Dan Markel and Chad Flanders have taken a firm stand against contemporary subjectivists.
3. See Dan Markel & Chad Flanders, Bentham on Stilts, 98 CAL. L. Rev. (forthcoming 2010).
4. This Article uses "suffering" broadly to capture the range of subjective experiences characterized as "negative" by those who experience them. "Suffering" so defined stretches well beyond physical pain.
5. While usually credited to retributivist theories of punishment, proportionality is equally a commitment of utilitarians.
6. See, e.g., CESARE Beccaria, Of Crimes and PUNISHMENTS 73-76 (Jane Grigson trans., Marsilio Publishers 1996) (1764). Kolber expresses deep reservations about proportionality, as do Bronsteen, Buccafusco, and Masur.
7. See Kolber, supra note 1, at 185
8. see also John Bronsteen, Christopher Buccafusco & Jonathan Masur, Retribution and the Experience of Punishment, 98 CAL. L. REV. 1463,1495-96 (2010). As is argued below, much of this discussion is a consequence either of a confusion between objective proportionality and comparative proportionality, or a mistake in attributing to the theorists they critique the view that comparative proportionality is an independent principle when, in fact, it is wholly derivative of objective proportionality.
9. See infra Part rV.A.
10. See Griffith v. Kentucky, 479 U.S. 314, 323-28 (1987) (discussing the principle of treating similarly situated defendants the same).
11. See generally Kolber, supra note 1, at 235-36 (arguing that subjective experience matters in assessments of punishment severity).
12. See generally Adam Kolber, The Comparative Nature of Punishment, 89 B.U. L. REV. 1565, 1598 (2009) (arguing that we have to measure sentence severity by comparing offenders' baseline and punished conditions).
13. See generally Bronsteen et al., supra note 1, at 1037 ("[N]ew findings about human adaptability unsettle the assumptions upon which the [penal] system rests. Specifically, people adapt well to negative changes in wealth and even to many features of prison life . ⋯").
14. See Kolber, supra note 1, at 236 (arguing that any successful justification of punishment must take subjective experience into account).
15. See Kolber, supra note 6, at 1566 (arguing that in order to assess punishment severity accurately we must compare an offender's life in prison relative to his life in his unpunished, baseline condition).
16. See Bronsteen et al., supra note 1, at 1054-55 (arguing that we would need to adjust our approach to sentencing in order to create the levels of imposed harm we intend if adjustments in the size of fines and the length of prison sentences do not affect the magnitude of the negative experience of punishment in a linear fashion).
17. See Kolber, supra note 1, at 222-23 (noting that new technologies can be expected to help in assessing a person's distress level)
18. see also Adam Kolber, The Experiential Future of Law, 60 EMORY L. Rev. (forthcoming 2011) (asserting that, in the future, we will have better technologies to measure experiences such as physical pain, pain relief, emotional distress, and anxiety).
19. See, e.g., Bronsteen et al., supra note 1, at 1069 (arguing that punishment theory must account for different individuals' experiences of punishment).
20. See, e.g., Kolber, supra note 1, at 212-13, 215-16, 218-19 (arguing that any successful justification of punishment must take the subjective experience into account).
21. IMMANUEL KANT, THE METAPHYSICS OF MORALS 105 (Mary Gregor trans., Cambridge Univ. Press 1996) (1785).
22. See Bronsteen et al., supra note 1, at 1068-73 (arguing that a necessary precondition to operationalizing the retributive theory is an understanding of the manner and degree to which fines and imprisonment actually negatively affect those who receive them)
23. Kolber, supra note 6, at 1595-97 (arguing that we must recognize the subjective severity of an offender's punishment in order to adequately justify their punishment)
24. Kolber, supra note 1, at 236 (arguing that retributivists should recognize that subjective experience matters in assessments of punishment severity and should take steps toward better calibrating punishment).
25. Kolber allows that those who view punishment solely as a tool for incapacitation may be excused since they, at least, are not so distracted by suffering.
26. See Kolber, supra note 1, at 218 ("[I]nterests in incapacitating people are largely independent of the subjective experience of the incapacitated.").
27. Kenneth W. Simons, Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment, 109 COLUM. L. REV. SIDEBAR 1, 1 (2009), http://www.columbialawreview.org/Sidebar/volume/109/l-Simons.pdf. This Article in no way denies the fact that suffering matters.
28. See infra Part VI.
29. See Chad Flanders, Retribution and Reform, 71 MD. L. REV. 87 (2011) (arguing that retributivism does not defend contemporary conditions of excessive and harsh punishment)
30. David Gray & Jonathan Huber, Retributivism for Progressives, 71 MD. L. REV. 163 (2010) (arguing that objective retributivism provides persuasive reason to reject much of our current punishment practice and criminal law policy).
31. But see Alice Ristroph, How (Not) to Think Like a Punisher, 61 FLA. L. REV. 727, 743 (2009) (arguing that retributivism is complicit in contemporary conditions of excessive and harsh punishment).
32. See, e.g., Bronsteen et al., supra note 1, at 1037 ("When the state punishes a criminal, it inflicts suffering.")
33. Kolber, supra note 6, at 1595-97 (arguing that the negative experiences associated with punishment are what really matters in assessing punishment severity)
34. Kolber, supra note 1, at 212 ("[T]he subjective disutility of punishment is not some mere aftereffect of punishment. Rather, it is largely or entirely the punishment itself.").
35. See JOEL FEINBERG, DOING & DESERVING 118 (1970) (arguing that punishment is a symbolic medium for expressing moral condemnation and that "[g]iven our conventions, of course, condemnation is expressed by hard treatment" but that "(p]ain should match guilt only insofar as its infliction is the symbolic vehicle of public condemnation")
36. Jean Hampton, The Moral Education Theory of Punishment, in PUNISHMENT: A PHILOSOPHY & PUBLIC AFFAIRS READER 112, 128 (A. John Simmons et al. eds., 1995) (distinguishing "punishment," which is a "disruption of the freedom to pursue the satisfaction of one's desires," from subjective experiences of punishment, which are often, but not always, painful)
37. Carlos Nino, A Consensual Theory of Punishment, in PUNISHMENT: A PHILOSOPHY & PUBLIC AFFAIRS READER, supra, at 94, 102-05 (arguing that punishment is fundamentally a normative concept). I am in debt to Amanda Pustilnik for her revelatory work on pain, in which she elaborates on the temptations of this mistake in multiple fields of law.
38. See, e.g., Amanda Pustilnik, Violence on the Brain: A Critique of Neuroscience in Criminal Law, 44 WAKE FOREST L. REV. 183, 187 (2009) ("[0]verreaching claims about the applicability of neuroscience may lead to misapplications similar to those of prior episodes of the criminal law-neuroscience story.").
39. See, e.g., Bronsteen et al., supra note 1, at 1071 (arguing that punishment theory must take into account the entire array of subjective negative experiences a specific punishment will have on an offender in order to increase the prospects for achieving proportional punishments).
40. Kolber, supra note 6, at 1587-88.
41. Kolber, supra note 1, at 188.
42. Bronsteen et al., supra note 1, at 1050-55
43. Bronsteen et al., supra note 3, at 1496 (arguing that punishment severity is based on the negative experiences associated with the punishment, which should include the typical effects that incarceration has on offenders' lives after prison).
44. See infra Part IV.A. There are, as Mitchell Berman points out in a recent book chapter, some punishment theorists who identify themselves as "retributivists" who endorse suffering as a goal of punishment. Mitchell Berman, Two Types of Retributivism, in THE PHILOSOPHICAL FOUNDATIONS OF CRIMINAL Law (R.A. Duff & Stuart Green eds.) (forthcoming 2010) (manuscript at 7), available at http://ssrn.com/abstract=1592546 (cited with permission of author). According to Berman, these theorists hold that offenders deserve to suffer for their crimes.
45. Id.
46. Berman carefully teases out the serious theoretical and practical challenges faced by these theorists, who are committed to a version of instrumentalism.
47. Id.
48. (manuscript at 8-16). For many of those reasons, and for reasons elaborated in Parts III and rV, infra, this Article uses " retributivist" to refer to and to promote objectivist theories of retributivism.
49. See FEINBERG, supra note 20, at 116-18 (arguing that social disapproval and its appropriate expression is what should fit the crime, and not the amount of subjective suffering experienced by the offender).
50. See Kolber, supra note 6, at 1582-83, 1600-06 (arguing that retributivism fails to adhere to one of its central features-prohibiting disproportional punishments-when it fails to calibrate punishment based on an offender's baseline subjective state)
51. Kolber, supra note 1, at 199-216 ("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.").
52. See Kolber, supra note 1, at 183 (arguing that many retributivists would sentence different offenders to different punishments even if they commit the same crime because of the differences in the offenders' subjective experiences of punishment).
53. Bronsteen et al., supra note 1, at 1074-75.
54. See generally Martha Nussbaum, Who Is the Happy Warrior? Philosophy Poses Questions to Psychology, 37 J. LEGAL STUD. 81 (2008) (criticizing the thin account of human agents endorsed by the psychology literature of hedonic flow).
55. Richard Kraut and Martha Nussbaum are two of the most compelling contemporary voices of the ancients.
56. See generally, e.g., RICHARD KRAUT, WHAT IS GOOD AND WHY: THE ETHICS OF WELL-BEING (2007)
57. MARTHA NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, Species Membership (2006) [hereinafter Nussbaum, Frontiers]
58. Martha Nussbaum, Capabilities as Fundamental Entitlements, 9 FEMINIST ECON. 33 (2003) [hereinafter Nussbaum, Capabilities].
59. While perhaps not the most nuanced, Judge Richard Posner is one of the most prominent of the contemporary technical utilitarians. Nevertheless, as Adam Kolber notes, even Judge Posner resists the idea that punishment should be measured or calibrated by reference to the subjective disutility inflicted upon individual offenders.
60. See Kolber, supra note 1, at 194 n.36 (citing a specific example where Judge Richard Posner declined to adjust an offender's sentence downwards despite the offender's "high sensitivity" argument).
61. Bronsteen, Buccafusco, and Masur note this "asymmetry."
62. See Bronsteen et al., supra note 1, at 1060-61 ("Deterrence ⋯ is an ex ante phenomenon: the important issue is what harm the prospective criminal believes she will suffer if she is caught and punished, not the harm that she eventually experiences."). Dan Markel and Chad Flanders discuss this asymmetry at length in an exchange with Bronsteen, Buccafusco, and Masur. Compare Markel & Flanders
63. supra note 1 (arguing that the variance in the experience of punishment is not critically relevant to the shape and justification of punishments), with Bronsteen et al.
64. supra note 3, at 1467-81 (arguing that the law should account for the differences in punishment experience when deciding how, and how much, to punish).
65. Bronsteen et al., supra note 1, at 1037.
66. Kolber, supra note 6, at 1599 n.89.
67. Kolber, supra note 1, at 222-23.
68. See generally MICHEL FOUCAULT, DISCIPLINE AND PUNISH (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1979) (discussing the historical impact of social normalization on criminal law).
69. Jeremy Bentham, The Panopticon Writings (Miran Bozovic ed., Verso 1995) (1787).
70. It is worth noting that the American Law Institute is poised to abandon the commitment to utilitarian concerns as the sole justification of punishment in the Model Penal Code.
71. See infra note 199 and accompanying text.
72. See Kolber, supra note 11 (arguing that the content of the law should change to pay more direct attention to experiences because more reliable technologies to measure such experiences are becoming available)
73. Kolber, supra note 1, at 222-23 (noting that emerging neuroscience technologies may allow more accurate assessments of individuals' subjective experiences in response to the argument that a system of subjectively calibrated punishments would be impossible or prohibitively expensive to fairly administer).
74. Bronsteen et al., supra note 1, at 1039-40, 1048 n.67.
75. The psychology literature on happiness has been applied to other areas of law as well.
76. See, e.g., John Bronsteen, Christopher Buccafusco, & Jonathan Masur, Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 COLUM. L. REV. 1516, 1518, 1527-35 (2008) (reviewing recent research in hedonic psychology and applying it to the settlement of personal injury claims, arguing that procedural delays have a counterintuitive corrective function because injured parties' initial perceptions of harm suffered actually have little overall effect on ultimate well-being)
77. Peter Huang & Rick Swedloff, Authentic Happiness and Meaning at Law Firms, 58 SYRACUSE L. REV. 335, 339-42, 345-50 (2008) (considering recent research applying behavioral economics and positive psychology to studies of lawyer happiness and recommending changes in law school and law firm culture and training).
78. Bronsteen et al., supra note 1, at 1055-81.
79. Kolber, supra note 11 (manuscript at 3, 13-47).
80. Bronsteen et al., supra note 1, at 1041.
81. Kolber, supra note 11 (manuscript at 3-4, 8, 48-50)
82. see, e.g., John Bickle, Precis of Philosophy and Neuroscience: A Ruthlessly Reductive Account, 4 Phenomenology & Cognitive Sci. 231, 232-37 (2005) (suggesting key neurobiological research is overlooked in the psychological literature and arguing that psychological explanations should be resigned to more heuristic roles exploring questions for which low-level cellular and molecular mechanisms of inquiry do not yet exist)
83. John Bickle, Psychoneural Reduction of the Genuinely Cognitive: Some Accomplished Facts, 8 PHIL. PSYCHOL. 265, 275-77, 282 (1995) (looking at empirical developments in the brain and behavioral sciences and suggesting cognitivist and psychological theories of behavior will be increasingly supplanted by neurophysiological accounts)
84. Huib de Jong & Maurice Schouten, Ruthless Reductionism, 18 PHIL. PSYCHOL. 473, 478-485 (2005) (responding to Bickle and arguing for a continuing productive relationship between psychology and neuroscience)
85. Nussbaum, supra note 30, at 86-101 (arguing that psychological literature investigating subjective well-being is replete with unquestioned normative assumptions and unacknowledged conceptual ambiguity that undermine its usefulness).
86. Kolber, supra note 1, at 182
87. see also JEREMY BENTHAM, The PRINCIPLES OF MORALS AND OF LEGISLATION 51-73 (J.H. Burns & H.L.A. Hart eds., Oxford Univ. Press 1996) (1807) (noting the circumstances that influence sensibility)
88. Nigel Walker, Legislating The Transcendental: Von Hirsch's Proportionality, 51 CAMBRIDGE L.J. 530, 533-34 (1992) (suggesting failure to account for subjective "sensibility" differences among those punished may undermine utilitarian theories rooted in personal deterrence).
89. Kolber, supra note 1,184, 231.
90. Id. at 189.
91. Id. at 187 & n.5.
92. Id. at 190-91.
93. While not at all trivial for practical penology, as is argued below, the example holds no sway in core theoretical debates. The suffering a claustrophobe feels in the form of severe anxiety is incidental to incarceration as a punitive constraint on liberty. There is no contest that incidental suffering secondary to objectively justified punishment may raise independent moral, constitutional, legal, or institutional questions; incidental suffering may even rise to the level that amelioration or adaptation of penal technology is required. However, these practical issues need not and do not pose a challenge to traditional theories of punishment because punishment is neither justified nor measured by its ability to cause suffering.
94. See Bronsteen et al., supra note 1, at 1046-49 & nn.58-67 (citing research indicating improved adaptation and a decrease of emotional trauma in many prisoners over the course of their sentences).
95. See Kolber, supra note 1, at 187 n.5, 213 n.88, 215-16, 220. As is argued below, this choice of words suggests that something has gone wrong in subjectivist attack on retributivism.
96. See infra Part rV.
97. Kolber, supra note 1, at 184.
98. Id. at 199.
99. As Kolber points out, his critical argument is agnostic as to whether proportionality in either form must or ought to be a constraint on punishment practices. Rather, his argument proceeds from the quite accurate claim that retributivists are committed to the claim that proportionality must and ought to be a constraint on punishment practices. Kolber's critical project is to leverage that commitment using the fulcrum of subjectivism. As is argued here, retributivists need not be subjectivists and, at least in light of Kolber's arguments, ought not be subjectivists.
100. See generally Talia Fisher, Comparative Sentencing 39-40 (Oct. 13, 2009), available at http://ssrn.com/abstract=1488345 (describing proportionality across cases as a "cardinal precept in retributivist theory")- As is pointed out in Part IV, this commitment to comparative proportionality is not independent. Rather, it is wholly a consequence of the commitment to objective proportionality.
101. Kolber, supra note 1, at 186-87.
102. Id.
103. Id.
104. Id. at 187, 215-16. "Comparative proportionality" should not be confused with Kolber's critique based on the comparative nature of punishment.
105. John Stuart Mill, Utilitarianism 48 (George Sher ed., Hackett Publ'g 1979) (4th ed. 1871).
106. Id. at 7.
107. Id.
108. See Kolber, supra note 1, at 216-17 (discussing utilitarian theories of punishment as deterrence and the goals of optimal punishment)
109. see also Kolber, supra note 6, at 1583 (further noting utilitarian balancing of pain and happiness).
110. Kolber, supra note 1, at 216-219.
111. MILL, supra note 56, at 7.
112. As in his critique of retributivism, the critical guidance Kolber offers to utilitarians is drawn from their own commitments. His critical agenda is carefully agnostic as to ultimately endorsing any positive theory of punishment.
113. Kolber, supra note 1, at 235-36
114. see also Kolber, supra note 6, at 1608 (critiquing proportional retributivism but acknowledging "there may be other reasons to prefer retributivism to consequentialism").
115. Kolber, supra note 1, at 186, 216-220, 230-35.
116. Id. at 186, 198, 216.
117. Kolber, supra note 6, at 1573.
118. See supra note 55.
119. Kolber, supra note 6, at 1568-69
120. Kolber, supra note 1, at 196-99.
121. Kolber, supra note 6, at 1571-73.
122. Id. at 1571-75.
123. Id.
124. Kolber grounds this argument in Joel Feinberg's influential work on measures of harm in the tort context.
125. Id. at 1571-72
126. (citing JOEL FEINBERG, FREEDOM AND FULFILLMENT 3, 7 (1992)
127. JOEL FEINBERG, HARM TO OTHERS 31-64 (1984)).
128. In another important essay Feinberg analyzes the differences between comparative and noncomparative conceptions of justice and points out that noncomparative measures play a dominant role in the criminal field. Joel Feinberg, Noncomparative Justice, 83 PHIL. REV. 297, 300-01, 311-13 (1974) [hereinafter Feinberg, Noncomparative Justice]. Elsewhere, Feinberg provides a muscular rejection of subjective suffering as a goal, measure, or justification of punishment. FEINBERG
129. supra note 20, at 116-118.
130. Kolber, supra note 6, at 1573-75. Bronsteen, Buccafusco, and Masur's work on hedonic adaptation may have some relevance to this account.
131. See Bronsteen et al., supra note 1, at 1041-54.
132. If the temporal arc of punishment finds the offender returning to his baseline in very short order, then it may turn out that, measured comparatively, many punishments we regard as quite severe are not so severe at all.
133. See infra Parts II. C and V.
134. Kolber, supra note 6, at 1571-75.
135. See supra Part II.A.
136. Kolber, supra note 6, at 1582-83.
137. Id. at 1582.
138. see also id. at 1582-83, 1600-07 (arguing that retributivists abandon proportionalism at great cost and should instead adopt calibration within a comparative framework).
139. Id.
140. Id.
141. Id. at 1567-68, 1600.
142. at 1567-68, 1600. As Kolber recognizes, this generalization based on an assumption should not be given too much empirical weight, but is offered as a thought experiment to make his point. Work by Bronsteen, Buccafusco, and Masur show the wisdom of Kolber's caution.
143. See infra Part II.C.
144. The complicated role of money in generating and modifying subjective states is also explored in a recent study where researchers found that, compared to a control group, subjects who had just counted money reported less suffering in response to painful stimuli. Xinyue Zhou, Kathleen D. Vohs & Roy F. Baumeister, The Symbolic Power of Money, 20 Psychol. Sci. 700,702-04 (2009).
145. Kolber, supra note 6, at 1567-68.
146. Id. at 1582-83, 1600-07.
147. Id. at 1600-07.
148. Id. at 1583-84; Kolber, supra note 1, at 236.
149. Kolber, supra note 6, at 1583-85, 1594-1600.
150. Id. at 1583-84.
151. See id. at 1583-84, 1596.
152. Kolber, supra note 1, at 216-19.
153. See Kolber, supra note 6, at 1583-84,1596.
154. Kolber, supra note 1, at 187, 216-19.
155. Bronsteen et al., supra note 1, at 1039 (citing Kolber, supra note 6, at 1596).
156. Id. at 1039.
157. see also Bronsteen et al.
158. supra note 3, at 1478-81, 1482-95 (extending this argument).
159. Bronsteen et al.
160. supra note 1, at 1039-41.
161. Calling to mind Mark Twain's quip that "reports of my death are greatly exaggerated," in 1939 J.D. Mabbott reported the common belief that "the retributive view is the only moral theory except perhaps psychological hedonism which has been definitely destroyed by criticism . ⋯" J.D. Mabbott, Punishment, 48 MIND 152, 152 (1939).
162. Bronsteen et al.
163. supra note 1, at 1039-46.
164. Id. at 1041.
165. Id. at 1041-42.
166. Id. at 1045-49.
167. Id.
168. Id. at 1045-46.
169. see also id.at 1038-39, 1058-59, 1069-70 (suggesting implications of such adaptation).
170. Id. at 1053-55.
171. Id. at 1055-57, 1070.
172. Id. at 1053-55.
173. See supra note 84 and accompanying text.
174. But see Zhou et al., supra note 76, at 704-05 (reporting data suggesting that threatened loss of money can enhance subjective experiences of pain).
175. Bronsteen et al., supra note 1, at 1043-44.
176. Id.
177. Id. at 1049-55.
178. Id. at 1052-54
179. see also infra note 103.
180. The authors make the quite insightful point that dramatic and sustained reductions in happiness postrelease may contribute to recidivism by reducing convicts' subjective assessments of their prospective reductions in happiness if they reoffend, are caught, convicted, and reincarcerated because, in a real sense, they have little left to lose. Bronsteen et al.
181. supra note 1, at 1066-67.
182. See, e.g., Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. REV. 623, 626-32 (2006) (explaining that reentry-related services are available while noting the significant challenges formerly incarcerated individuals still face)
183. Michael Pinard, A Reentry-Centered Vision of Criminal Justice, 20 FED. SENTg REP. 103, 103 (2007) (arguing for a criminal justice system more focused on reentry, to help the growing numbers of individuals with criminal records face the challenges of reentry)
184. Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. REV. 457, 459-61 (2010) (explaining that scholars, attorneys, and others who have considered reentry issues "generally recognize that the problem of postconviction collateral consequences is rapidly becoming more severe")
185. Michael Pinard & Anthony C. Thompson, Offender Reentry and the Collateral Consequences of Criminal Convictions: An Introduction, 30 N.Y.U. REV. L. & Soc. CHANGE 585, 594 (2006) ("[Tjhe most pressing problems that the ex-offender encounters are the obstacles that interfere with the ability to make a smooth transition to being a productive member of the community.").
186. See, e.g., A HARD STRAIGHT (New Day Films 2004).
187. Bronsteen et al., supra note 1, at 1044-45, 1060-61.
188. Id. at 1045.
189. See id. at 1061
190. ("People, as a general rule, do not remember their adaptive responses to negative stimuli.").
191. See id.
192. Id. at 1048-49.
193. Id. at 1071-74.
194. See infra Part V.B (explaining the argument of Bronsteen, Buccafusco, and Masur that the phenomena of adaptation and of the human inability to predict personal future adaptation "are in tension with traditional theory and current practice because the deterrent 'bang' is all frontloaded," and thus, "longer sentences ⋯ serve no utilitarian purpose").
195. Bronsteen et al., supra note 1, at 1071-74.
196. See id. at 1074-75 ("If less punishment can achieve the desired end, then society gains monetarily by eschewing a more severe alternative (in particular, a longer prison sentence).").
197. See id. at 1061-62
198. at 1061-62 (explaining that failing to take adaptation into account will result in calculations of punishment that are higher than necessary, from consequentialist standpoint). This author does not contest this conclusion, but would argue for it on retributive grounds.
199. See Gray & Huber, supra note 18.
200. Kolber, supra note 1, at 215-16
201. see also Kolber, supra note 6, at 1595 (summarizing the argument in The Subjective Experience of Punishment that "even if the disvalue of punishment consists of more than just negative subjective experiences, those experiences are at least part of what makes punishment burdensome"). Kolber makes the same claim about consequentialist theories of punishment.
202. Kolber, supra note 1, at 216-17. Bronsteen, Buccafusco, and Masur explicitly endorse Kolber's views on these key points. Bronsteen et al.
203. supra note 1, at 1039 n.4, 1069.
204. As Mitch Berman has pointed out, not all theorists who identify themselves as retributivists are objectivists. Berman
205. supra note 25, at 7.
206. Kolber, supra note 1, at 216.
207. Id. at 212
208. see also Kolber, supra note 6, at 1595 (summarizing the argument in The Subjective Experience of Punishment that "even if the disvalue of punishment consists of more than just negative subjective experiences, those experiences are at least part of what makes punishment burdensome").
209. This is not to deny that other legal and non-legal institutions and persons impose penalties. Consider punitive damages awards, which raise their own theoretical and practical concerns, none of which need be addressed here. For a retributivist understanding and reconfiguration of such awards
210. see Dan Markel, How Should Punitive Damages Work? 157 U. Pa. L. Rev. 1383 (2009)
211. Dan Markel, Retributive Damages: A Theory of Punitive Damages As Intermediate Sanction, 94 CORNELL L. REV. 239 (2009).
212. See H.L.A. Hart, Punishment and Responsibility i, 4-9 (1968) (discussing justifications for punishment as they relate to different theories of punishment).
213. See Berman, supra note 25, at 7.
214. See, e.g., KANT, supra note 14, at 105 ("Punishment by a court ⋯ can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society. It must always be inflicted upon him only because he has committed a crime.")
215. MICHAEL MOORE, Placing Blame: A Theory of the Criminal Law 83 (1997) (defining "retributivist" as "one who believes that the justification for punishing a criminal is simply that the criminal deserves to be punished").
216. See KANT, supra note 14, at 105 ("Punishment ⋯ can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society. It must always be inflicted upon him only because he has committed a crime.").
217. See BECCARIA, supra note 3, at 13-14 ("Punishments which go beyond the need of preserving the common store or deposit of public safety are in their nature unjust.").
218. See Berman, supra note 25, at 19 ("Non-instrumentalist retributivism would bar [punishment in the absence, or in excess, of an offender's desert]."). Some retributivists also argue that desert is a sufficient condition for punishment.
219. See, e.g., KANT, supra note 14, at 105 ("The law of punishment is a categorical imperative ⋯.")
220. MOORE, supra note 122, at 88-89, 153-54 ('The distinctive aspect of retributivism is that the moral desert of an offender is a sufficient reason to punish him or her ⋯ .")
221. Thomas Hill, Kant on Wrongdoing, Desert, and Punishment, 18 LAW & PHIL. 407, 411-12 (1999) ("[D]eep retributivists hold [that it is morally necessary that wrongdoers be made to suffer] as a fundamental moral principle, which can serve to justify retributive policies of punishment.")
222. Michael S. Moore, The Moral Worth of Retributivism, in RESPONSIBILITY, CHARACTER, AND THE EMOTIONS 179, 181-182 (Ferdinand Schoeman ed., 1987) (stating that, from a retributivist standpoint, desert is "both a sufficient as well as a necessary condition of liability to punitive sanctions"). As Nigel Walker points out, however, many "modern" retributivists have shied away from the view that there is "an obligation to punish, and substituted a mere right to punish" if and only if that punishment is deserved.
223. Nigel Walker, Even More Varieties of Retribution, 74 PHIL. 595, 601 (1999). For present purposes, this Article need not take sides in this "duty" vs. "right" debate.
224. Id. at 604.
225. This objective constraint frequently is interpreted as suggesting a hierarchy of crime and punishment such that more severe crimes lead to more severe punishments. As is elaborated below, this idea of a hierarchy of severity is somewhat misleading to the extent it suggests the existence of a fungible unit of seriousness in crime and a corresponding unit of severity in punishment. See infra Part TV.A.
226. See, e.g., KANT, supra note 14, at 106-07 (explaining how various acts and punishments have different significances to different individuals, depending on the respective individuals' sensibilities)
227. see also infra note 229 (providing a portion of the text of Kant's argument regarding the varying significances of acts and punishments to various criminals, and explaining its significance).
228. See ROBERT NoziCK, PHILOSOPHICAL EXPLANATIONS 363-65 (1983) ('The punishment deserved depends on the magnitude ⋯ of the wrongness of the act, and the person's degree of responsibility ⋯ for the act.").
229. See Manuel G. Velasquez, Why Corporations Are Not Morally Responsible for Anything They Do, in COLLECTIVE RESPONSIBILITY 111, 113-14 (Larry May & Stacey Hoffman eds., 1991) (stating that the nineteenth-century common law required both an "actus reus" and "mens rea" for criminal responsibility). These same prerequisites are also important in some utilitarian systems. Herbert Wechsler's Model Penal Code, for example, maintained in different language the common law requirements for a legal prohibition sufficient to meet legality demands, a voluntary act, and a mental connection to the crime as prerequisites for criminal punishment.
230. See MODEL PENAL CODE §§ 2.01-.02 (1962) (requiring for criminal liability "conduct that includes a voluntary act or the omission to perform an act of which [one] is physically capable," and purposeful, knowing, reckless, or negligent action). Inclusion of these requirements in a largely utilitarian system bespeaks the persistent influence of retributivism.
231. Omissions and strict liability crimes may seem to constitute exceptions. For reasons outside the scope of this Article, I do not think they are.
232. See David Gray, You Know You Gotta Help Me Out (Oct. 28, 2010) (unpublished manuscript, on file with author).
233. See, e.g., Taylor v. Superior Court, 477 P.2d 131, 141 (Cal. 1970) (Mosk, J., dissenting) ("Fundamental principles of criminal responsibility dictate that the defendant be subject to a greater penalty only when he has demonstrated a greater degree of culpability.").
234. Feinberg, Noncomparative Justice, supra note 68, at 300-01, 311-13, 318-19
235. see also MOORE, supra note 122, at 90-91 (arguing that the noncomparative proportionality principle of retributivism allows for a determination of "which cases care truly alike," and thus, allows like cases to be treated alike). As Feinberg points out, comparative disparities may reveal noncomparative injustice, and comparative disparities may underwrite moral sentiments of injustice-particularly immature moral sentiments-but where disparities do not reveal noncomparative injustice, claims that a wrong has been committed do not carry much weight.
236. Kolber, supra note 1, at 212-13. Bronsteen, Buccafusco, and Masur are fairly straightforward in their endorsement of the proposition that punishment is suffering, stating that, "When the state punishes a criminal, it inflicts suffering," where "suffering" is a self-reported state of "unhappiness." Bronsteen et al.
237. supra note 1, at 1037-38. Kolber's critique of retributivism is also committed to the view that retributivists must define punishment as suffering, though he is less definitive on what constitutes "suffering," which is evidenced by his preference for the phrase "subjective disutility." Kolber.
238. supra note 1, at 212-213
239. see also id. at 197-198 (explaining the relevance of prisoners' subjective experiences).
240. Kolber, supra note 1, at 215-16
241. see also Kolber, supra note 6, at 1600-01 ("[T]he comparative nature of punishment makes a purely objective notion of proportionality untenable.").
242. Kolber makes a similar argument based on the retributivist commitment that punishment ought to be proportionate to the crime for which it is imposed. Kolber contends that an offender may experience a quantum of suffering disproportionate to his crime, a prospect that presents retributivists with a potential contradiction. Kolber.
243. supra note 1, at 199-216
244. see also Bronsteen et al., supra note 1, at 1068-69 (crediting Kolber's argument that "different individuals' experiences of punishment must be taken into account"). Again, however, the claimed tension is between two claims-1) that an offender has received a punishment proportionate to his crime; and 2) that the same offender has received a quantum of suffering disproportionate to his crime-which are not in contradiction absent the added premise that punishment is suffering.
245. "Equivocation" is used here for its technical meaning, denoting a semantic shift within an argument that allows the proponent to draw an unwarranted conclusion. BLACKWELL Dictionary of Western Philosophy 249 (Nicholas Bunnin & Jiyuan Yu eds., 2004).
246. Kolber, supra note 1, at 184-85.
247. Id. at 235-36.
248. See John Bronsteen, Christopher Buccafusco, & Jonathan Masur, Welfare as Happiness, 98 GEO. L.J. 1583, 1596 (2010) (explaining the availability of measures for gauging "the well-being that people actually feel"); Kolber, supra note 11, at 3-4 (explaining that "new technologies have already shifted the way we measure experiences and will continue to do so more dramatically over the next thirty years," and arguing that these technologies "should ⋯ change the way we assess criminal blameworthiness and punishment severity").
249. Kolber recognizes the centrality of this claim to his enterprise. See Kolber, supra note 1, at 214 (noting that "[o]nly if one believes that experiential suffering should not count at all are we relieved entirely of the obligation to calibrate subjective experience," which is the logical equivalent of saying that "if one believes that experiential suffering should not count at all then we are relieved entirely of the obligation to calibrate subjective experience").
250. See Kent Greenawalt, Punishment, 74 J. Crim. L. & CRIMINOLOGY 343, 344 (1983) ("God and humans can punish; hurricanes cannot."). Some readers may cavil, suggesting that background facts will demonstrate that these unfortunate souls "deserve" disease or physical harm because they contributed to the constellation of risks that eventually led to their suffering.
251. See, e.g., ARISTOTLE, NICOMACHEAN ETHICS 38-39 (Terence Irwin trans., 2d ed. 1999) ("[W]e never censure someone if nature causes his ugliness; but if his lack of training or attention causes it, we do censure him."). While perhaps true in some cases, it is not true in all cases.
252. Id.
253. Regardless, the claim turns on another equivocation, neatly captured by Kant's distinction between "poena forensis" ("[pjunishment by a courf) and "poena naturalis" ("in which vice punishes itself and which the legislator does not take into account").
254. KANT, supra note 1414, at 105
255. see also GEORGE P. FLETCHER, THE GRAMMAR OF CRIMINAL LAW 231 (2007) (discussing Hart's fourth and fifth requirements for punishment, which "address the qualities required of the punishing authority")
256. HART, supra note 120, at 4-5 (defining punishment to include the following characteristics: "[i]t must be for an offence against legal rules ⋯ of an actual or supposed offender for his offence ⋯ intentionally administered by human beings other than the offender ⋯ imposed and administered by a legal system against which the offence is committed").
257. Disvaluable states might be defined objectively, without regard to whether a particular person experiencing that state finds it pleasant or unpleasant. That is the approach to punishment advanced in a recent article by Dan Markel and Chad Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, Cal. L. REV. (forthcoming 2010) (manuscript at 142), available at http://ssrn.com/abstract=1587886 ("[W]hat retributivists ought to care about foremost is the imposition of the punishment as a communication directed at the offender, not the offender's idiosyncratic and variable reaction to the coercive condemnatory deprivation."). However, Kolber clearly means "disvaluable" states to refer to those states which actually cause a particular offender to experience some degree of subjective experience that is subjectively experienced as negative.
258. Kolber, supra note 1, at 187 n.5.
259. FEINBERG, supra note 20, at 106. The range of such state impositions provides ready counterexamples for other attempts to refine further the claim that punishment is suffering along this general line. For example, were subjectivists to define punishment as state-imposed suffering in response to a voluntary act, they would have to distinguish income taxes, which are imposed in response to earnings, sales taxes, which are imposed in response to purchases, and registration requirements, which are imposed upon those who, for example, decide to own and drive a car. For an engaging analysis of taxes as non-punitive measures.
260. see LlAM MURPHY & Thomas Nagel, the Myth of Ownership: Taxes and justice (2002). As is argued here, the flow of counterexamples only abates when one recognizes desert as a necessary and defining feature of punishment; and, further, taking this constraint on punishment seriously requires measuring punishment objectively, without regard to the idiosyncratic experiences of offenders.
261. Kolber, supra note 1, at 212.
262. See Bronsteen et al., supra note 1, at 1037 ("When the state punishes a criminal, it inflicts suffering. There are limits on the amount and type of suffering that may legitimately be imposed⋯.").
263. See Flemming v. Nestor, 363 U.S. 603, 616 (1960) (asserting that administrative consequences, such as "bar[ring] from practice [of medicine] persons who commit or have committed a felony," are an exercise of "regulatory power," and do not "add to the punishment").
264. As is argued below, the examples, hypotheticals, and thought experiments offered by Kolber as reductio ad absurdum against traditional theories of criminal punishment are guilty of precisely this equivocation. See infra notes 148-53 and accompanying text.
265. Kolber, supra note 1, at 184-85.
266. See infra Part VI.
267. Kolber, supra note 1, at 213.
268. Id. at 213-14.
269. See Nussbaum, supra note 30, at 86-88, 96-97 (noting that those who rely on self-reported happiness do not account for the ambiguity of incidental suffering).
270. See Kolber, supra note 1, at 196-98
271. Bronsteen et al., supra note 1, at 1069.
272. See, e.g., Bronsteen et al., supra note 1, at 1037
273. Bronsteen et al.
274. supra note 3, at 1487 n.99 (defending purpose as an element of proximate cause as a criterion for determining whether suffering is punishment)
275. Kolber, supra note 1, at 196-98 (arguing that the primary burden of criminal theory is to justify "purposefully or knowingly inflict[ing] substantial pain or distress")
276. Id. at 212-13 ("Subjective disutility is a necessary component of retributive punishment and constitutes, if not the sole reason for retributive punishment, certainly a major part of it.").
277. See Kolber, supra note 1, at 195-96. This is a significant omission.
278. See FLETCHER, supra note 141, at 228 (interpreting Hart)
279. HART, supra note 120, at 4-5.
280. Kolber, supra note 1, at 188.
281. Bronsteen et al., supra note 1, at 1050
282. Bronsteen et al., supra note 3, at 1489.
283. Kolber, supra note 1, at 212-13.
284. Id. at 188.
285. Knowledge or "purpose" on the part of someone may also be necessary in Kolber's view. However, neither is sufficient. As is discussed below, agents who act knowingly or purposefully to put another person at certain risk of harm may be criminally or tortiously liable for their conduct, but that knowledge or purpose does not convert the harm into punishment.
286. See infra note 161 and accompanying text. The story in no way changes if the person who knowingly or purposely puts his victim in harm's way is a state official. Therefore, to maintain his claim that prison sexual assault is a component of "punishment" when it occurs, Kolber appears to be committed to the view that location is an essential criterion when distinguishing between sexual assault that is punishment and sexual assault that is not punishment.
287. See FLETCHER, supra note 141, at 227-33.
288. In recognition of this fact, some courts have held that where a prisoner escapes from custody out of fear of prisoner-on-prisoner violence he may claim a defense based on necessity.
289. See, e.g., People v. Unger, 362 N.E.2d 319, 322-23 (111. 1977).
290. Respecting Hart's prohibition, I do not mean to argue by definition.
291. See HART, supra note 120, at 6 (cautioning against definitional arguments).
292. Rather, the point is that if subjectivists want to jettison three of the five commonly identified characteristics of punishment Hart cites, its advocates must provide a robust normative argument for their departure.
293. See Kolber, supra note 1, at 186-88 (making just this critique).
294. This is not to say that prisoner-on-prisoner violence is of no moral or legal significance. Prison officials are charged with protecting those under their care from unlawful assault. Failures by prison officials to provide sufficient protections from prison violence may be tortious or criminal. Mercy may also recommend early release for offenders subject to criminal violence in part as a reflection of institutional failures to provide adequate security and protection. However, none of this makes prisoner-on-prisoner violence "punishment" such that failures by retributivists or utilitarians to account for it and justify it would provide reasons to abandon their theories of punishment. To the contrary, prisoner-on-prisoner violence is a crime, and suffering occasioned by crimes committed in prison is, strictly speaking, incidental to punishment. Kolber's contrary claim- that prison rape is an element of punishment-is troubling to say the least.
295. Id. at 197.
296. Kolber, supra note 1, at 197
297. see also Kolber, supra note 11.
298. Kolber extends his thought experiment to include omissions as well. That extension is addressed below.
299. Id. at 197-98.
300. HART, supra note 120, at 4-5.
301. As is suggested in Part I and elaborated further in Part VI, objectivist theories provide powerful tools for recognizing and condemning abuse in prison and create obligations on the part of prison officials to minimize incidental suffering. To the extent Kolber and Bronsteen, Buccafusco, and Masur want to press a progressive agenda against prison sexual assault, improvements in prison conditions, vigorous reentry programs, or other efforts designed to curb abuse and limit incidental suffering, this author has no objections. To the contrary, the point here is that objective theories of criminal punishment provide more powerful tools for advancing those agendas than the subjectivist critiques pressed by Kolber and Bronsteen, Buccafusco, and Masur. For that reason, and because their critiques do not offer any reason to reject objectivist accounts of punishment, Kolber and Bronsteen, Buccafusco, and Masur should embrace objective over subjective accounts of punishment.
302. See infra Part IV.
303. Consider as an example the following passage: "While some theorists purport to hold objective accounts of punishment that ignore offenders' subjective experiences, such theories are doomed to fail. By ignoring subjective experience, they cannot justify the amount of distress that punishment inflicts on offenders, and so they cannot justify punishment more generally." Kolber, supra note 1, at 184
304. Kolber, supra note 1, at 184
305. see also Bronsteen et al., supra note 1, at 1068, 1072 n.166.
306. The fallacy in this argument is now evident in light of subjectivism's failure to justify the equivocation from "punishment" to suffering. If, as it now seems, the suffering these theories ignore is incidental, then punishment theory carries no obligation to justify that suffering because to do so would conflate criminal abuse with just punishment. Far from constituting a failure of theory, then, retributivists' and utilitarians' refusals to justify incidental suffering is a necessary, not a condemnatory, feature of their efforts to justify punishment more generally.
307. See, e.g., Kolber, supra note 1, at 196-98 (arguing that the primary burden of criminal theory is to justify "purposefully or knowingly inflictpng] substantial pain or distress")
308. Bronsteen et al., supra note 3, at 1479.
309. MODEL PENAL CODE § 2.02(7) (1962).
310. See generally Kolber, supra note 6.
311. Id. at 1587-88.
312. Id.
313. Id.
314. Id. at 1588.
315. Equally counterintuitive is the implied suggestion that the best way for an offender to reduce the objective severity of his punishment would be to go on a wildly pleasurable vacation right before submitting to custody.
316. Bronsteen et al., supra note 1, at 1049-53.
317. See, e.g., Smith v. Doe, 538 U.S. 84, 105-06 (2003) (sex offender registration requirements are not "punishment")
318. Kansas v. Hendricks, 521 U.S. 346, 350 (1997) (administrative incarceration of convicted sex offenders is not punishment)
319. Flemming v. Nestor, 363 U.S. 603, 616 (1960) (administrative consequences, such as "bar[ring] from practice [of medicine] persons who commit or have committed a felony," are exercises of "regulatory power," and do not "add to the punishment").
320. See MOORE, supra note 122, at 25 (arguing that to explain "punishment" one must explain a sanction's punitive purpose).
321. I refer to Tom Hanks's eponymous character in Forrest Gump (Paramount Pictures 1994), but the adage traces to a proverb of much longer history: "He is handsome that handsome doth." WILLIAM G. BENTHAM, BOOK OF QUOTATIONS PROVERBS AND Household Words 788 (1907).
322. HART, supra note 120, at 19.
323. FEINBERG, supra note 20, at 111-18.
324. This conceptual mistake has a long history tracing back at least to Plato.
325. See PLATO, THE REPUBLIC, 227-31 (Francis MacDonald Cornford trans., 1945). More recently, it is a mistake common in efforts by lawyers to make sense of new knowledge and technology at the cutting edge of medicine, neuroscience, and the social sciences.
326. See generally Pustilnik, supra note 20.
327. See, e.g., Bronsteen et al., supra note 1, at 1068-70
328. Kolber, supra note 1, at 197, 199, 212-13, 215-16.
329. Kolber, supra note 1, at 199 (emphasis omitted). Kolber does credit some retributivists for being objectivists. However, for reasons addressed below, he concludes that these theories either devolve into subjectivist theories or are otherwise obliged to recognize and justify differences in the subjective experiences of offenders.
330. Id. at 212-13, 215-16
331. Kolber, supra note 6, at 1585-86.
332. Bronsteen et al., supra note 1, at 1073 n.166.
333. See, e.g., FEINBERG, supra note 20, at 116-18 (rejecting this view)
334. FLETCHER, supra note 141, at 228 (same)
335. Hampton, supra note 20, at 128-29 (same)
336. Herbert Morris, A Paternalistic Theory of Punishment, 18 Am. PHIL. Q. 263, 270 (1981) (same). As Mitchell Berman has pointed out, there are some contemporary retributivist theorists committed to a version of instrumentalism because they endorse a version of the subjectivist claim that the goal of punishment is to inflict suffering.
337. See Berman, supra note 25. For these scholars, this Article should provide substantial motivation to prefer objective approaches.
338. See FEINBERG, supra note 20, at 116.
339. See Michael E. McCullough, Beyond Revenge: The Evolution of the FORGIVENESS INSTINCT 41-87 (2008) (arguing that the revenge instinct has an almost universal appeal, from an evolutionary point of view, for creatures such as human beings, who live in cooperative communities)
340. MILL, supra note 56, at 50-51 (noting roles of moral outrage and instincts of self-defense in punitive impulses).
341. See generally SUSAN JACOBY, WILD JUSTICE: THE EVOLUTION OF REVENGE (1983). One also cannot help but recall Foucault's vivid account of the elaborate execution of Damien.
342. FOUCAULT, supra note 35, at 3-6.
343. NOZICK, supra note 128, at 366-70
344. see also GEORGE FLETCHER, RETHINKING CRIMINAL LAW 417 (2000) ("[Retributivism] is obviously not to be identified with vengeance or revenge, any more than love is to be identified with lust.")
345. J.F. STEPHENS, GENERAL VIEW OF THE CRIMINAL LAW OF ENGLAND 99 (1863) ("The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.").
346. See, e.g., FLETCHER, supra note 141, at 228
347. HART, supra note 120, at 4-5
348. MOORE, supra note 122, at 153
349. Hampton, supra note 20, at 128-29.
350. Nino, supra note 20, at 102.
351. This is in contrast to most utilitarians-with the notable exception of Bentham-who maintain that suffering and happiness by their nature have a normative valence.
352. See Nussbaum, supra note 30, at 92-95.
353. FLETCHER, supra note 190, at 396-101.
354. See, e.g., id. at 415-18, 461-62, 505-14
355. FLETCHER, supra note 141, at 228
356. KANT, supra note 14, at 104-09
357. Hampton, supra note 20, at 128-29.
358. Kolber acknowledges that some retributivists are objectivists rather than subjectivists, yet argues those theorists must account for subjective experiences of punishment in their theories. Kolber, supra note 6, at 1585-86
359. Kolber, supra note 1, at 215-16.
360. The discussion of Kant's theory of punishment presented here is necessarily brief and as a consequence blurs over substantial debates among Kant scholars.
361. See, e.g., Sharon Byrd, Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution, 8 LAW & PHIL. 151, 153 (1989) (arguing that Kant envisioned threat of punishment as a deterrent and execution of punishment as objective retribution)
362. Samuel Fleischacker, Kant's Theory of Punishment, in ESSAYS ON KANT'S POLITICAL PHILOSOPHY 191 (1992) (bringing an interpretation of Kant's theory of punishment more in line with wider moral thought)
363. Thomas Hill, Kant on Punishment: A Coherent Mix of Deterrence and Retribution?, 1997 ANN. Rev. L. & ETHICS 291, 293 (1997) (arguing that the deterrence elements in Kant's view of punishment serve an important but restricted role)
364. Jeffrie Murphy, Does Kant Have a Theory of Punishment, 87 COLUM. L. REV. 509, 532 (1987) [hereinafter Murphy, Does Kant] (arguing, in disagreement with his past self, that Kant did not create an internally consistent theory of punishment over the course of his career)
365. Jeffrie Murphy, Kant's Theory of Criminal Punishment, in RETRIBUTION, JUSTICE AND THERAPY: ESSAYS IN THE PHILOSOPHY OF LAW 82, 84-90 (1979) [hereinafter Murphy, Kant's Theory] (defending Kant's retributivist theory of criminal punishment from utilitarian objections)
366. Don Scheid, Kant's Retributivism, 93 ETHICS 262, 265 (1983) (arguing that Kant is not a thoroughgoing retributivist but a partial retributivist).
367. Kolber has not offered a positive theory of punishment and therefore has not endorsed subjectivism. Part of the purpose of this Article and the exchanges in which it participates is to persuade Kolber and others that his critique actually ought to lead him to endorse an objective theory of punishment.
368. Cf. Markel & Flanders, supra note 142, at 111 (explaining that because they enjoyed equal freedom in making their decisions to commit crimes, criminals should get substantially, i.e. objectively, equal punishments). Bronsteen, Buccafusco, and Masur have gone further.
369. See Bronsteen et al., supra note 3, at 104 (endorsing subjective approaches to punishment). Fletcher, supra note 190, at 416
370. Wayne LaFave, Criminal Law 30 (2003).
371. See MODEL PENAL CODE § 1.02(2) (tentative draft Apr. 9, 2007) ("Purposes: Principles of Construction. (2) The general purposes of the provisions on sentencing, applicable to all official actors in the sentencing system, are: (a) in decisions affecting the sentencing of individual offenders: (i) to render sentences in all cases within a range of severity proportionate to the gravity of offenses, the harms done to crime victims, and the blameworthiness of offenders; (ii) when reasonably feasible, to achieve offender rehabilitation, general deterrence, incapacitation of dangerous offenders, restoration of crime victims and communities, and reintegration of offenders into the law-abiding community, provided these goals are pursued within the boundaries of proportionality in subsection (a)(i); and (iii) to render sentences no more severe than necessary to achieve the applicable purposes in subsections (a)(i) and (a)(ii)."). At least one prominent author has criticized this revision.
372. See Ristroph, supra note 18, at 729-745 (attacking the revision's reliance on desert in sentencing guidelines).
373. See 18 U.S.C. § 3553(a)(2) (2006) (stating that the law must provide just punishment for the offense).
374. FLETCHER, supra note 190, at 416-17
375. see also MOORE, supra note 122, at 83.
376. See generally John Cottingham, Varieties of Retribution, 29 PHIL. Q. 238, 238 (1979) (distinguishing nine such relationships).
377. See John Bronsteen, Retribution's Role, 84 IND. L.J. 1129, 1131 (2009) (noting centrality of Kant in the punishment canon). Kant's theory of punishment is a subject of hot debate among Kant scholars.
378. See supra note 196.
379. Immanuel Kant, Grounding for the Metaphysics of Morals 14 (James Ellington trans., Hackett Publ'g Co. 1983).
380. JOHNRAWLS, A THEORY OF JUSTICE 251-57 (Harvard Univ. Press 2005) (1971).
381. JURGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION 8-42 (Thomas McCarthy trans., Beacon Press 1984) (1981). Kant uses willkur.
382. See KANT, supra note 14, at 13 (distinguishing will or choice [willkur] from a mere wish).
383. Id. at 12-14.
384. This account of freewill is not without its critics.
385. See, e.g., Murphy, Does Kant, supra note 196, at 523-24 (arguing that Kant did not want to remove all considerations of the criminal's mental state from analysis of their desert of punishment).
386. KANT, supra note 14, at 13.
387. Immanuel Kant, Critique of Pure Reason 312-13 (Norman Smith trans., St. Martin's Press 1965) [hereinafter KANT, CRITIQUE]. Kant's conception of a Kingdom of Ends serves a similar role in his historical philosophy. While outwardly nai've in his hope for a society where everyone acts in a purely moral fashion, Kant is well aware that we are a "race of devils," and therefore need the external constraint of a state writing law in the shadow of the bloodbath of history to compel us to an approximation of the ideal. Immanuel Kant, Perpetual Peace: A Philosophical Sketch, in KANT: POLITICAL WRITINGS 93, 105, 112-13 (Hans Reiss ed., Cambridge University Press 1991) [hereinafter Kant, Perpetual Peace]
388. see also RAWLS, supra note 205, at 246.
389. KANT, supra note 14, at 17.
390. An agent's maxim of action is by definition available only to him, but it can be imputed to him based on his actions.
391. Id. at 19.
392. Thomas Hill has a slightly different reading, concluding that maxims incorporate "rationales" in keeping with "general principles of rational choice." As Hill admits, however, that reading sets aside "Kant's troublesome references to 'noumenal' causation." Hill, supra note 125, at 415-16.
393. KANT, supra note 14, at 17.
394. In a purely communist society the maxim of theft, "I take that which is not mine," would be nonsensical because there is no conception of mine and thine. This reveals that, in all but a few cases, moral duty is derivative of background social practice. Two notable exceptions are murder and suicide, which, taken to their logical ends, would entail the destruction of humanity and the exercise of reason in general. It is therefore impossible as a moral matter for a society to condone or allow murder or suicide.
395. Kant, Critique, supra note 211, at 312-13.
396. Immanuel Kant, Religion Within the Limits of Reason Alone 87-91 (Thomas M. Greene & Hoyt H. Hudson trans., Harper & Row 1960) [hereinafter KANT, RELIGION]
397. Kant, Perpetual Peace, supra note 211, at 93, 105, 112-13
398. see also RAWLS, supra note 205, at 315
399. Murphy, Kant's Theory, supra note 196, at 87-90
400. (anticipating HART, supra note 120, at 4-9, who distinguished among three questions: (1) Why have a system of punishments? (2) Who should be punished?
401. and (3) What form should punishment take?).
402. KANT, CRITIQUE, supra note 211, at 312
403. Murphy, Does Kant, supra note 196, at 521-28.
404. Kant, Critique supra note 211, at 312.
405. KANT, supra note 14, at 105.
406. RAWLS, supra note 205, at 241.
407. KANT, supra note 14, at 105.
408. HART, supra note 120, at 24.
409. KANT, supra note 14, at 105.
410. Id.
411. Id. at 106.
412. As Thomas Hill has pointed out, moral agents may well feel "discomfort" when they realize their wrongdoing and may even accept as appropriate the condemnation of others. However, those self-directed reactive attitudes are an "inherent liability in being one moral agent among others," and "[t]here is no ground here for supposing that this suffering, or even more, should be deliberately imposed," or that wrongdoers deserve to suffer in any practical sense that entitles others to contribute to their suffering.
413. Hill, supra note 125, at 421-22, 424.
414. See Kolber, supra note 1, at 184 n.l (citing Kant in a "cf." footnote for the proposition that punishment must be proportional to the subjective experiences of offenders). The passage he cites reads in full: But only the law of retribution (ius talionis)-it being understood, of course, that this is applied by a court (not by your private judgment)-can specify definitely the quality and the quantity of punishment; all other principles are fluctuating and unsuited for a sentence of pure and strict justice because extraneous considerations are mixed into them. - Now it would indeed seem that differences in social rank would not allow the principle of retribution, of like for like; but even when this is not possible in terms of the letter, the principle can always remain valid in terms of its effect if account is taken of the sensibilities of the upper classes. - A fine, for example, imposed for a verbal injury has no relation to the offense, for someone wealthy might indeed allow himself to indulge in a verbal insult on some occasion; yet the outrage he has done to someone's love or honor can still be quite similar to the hurt done to his pride if he is constrained by judgment and right not only to apologize publicly to the one he has insulted but also to kiss his hand, for instance, even though he is of a lower class.
415. Similarly, someone of high standing given to violence could be condemned not only to apologize for striking an innocent citizen socially inferior to himself but also to undergo a solitary confinement involving hardship; in addition to the discomfort he undergoes, the offender's vanity would be painfully affected, so that through his shame like would fittingly be repaid with like.
416. KANT, supra note 14, at 106.
417. Read incautiously, this passage may appear to endorse a subjectivist account of punishment. It mentions "pain" and "shame" after all. To rest on this surface would be to ignore the crucial reference to retribution and its role in determining the objective necessity for shaming in certain circumstances. Here, Kant recognizes that some crimes express a maxim of status entitlement. Proper punishment in these circumstances requires bringing low the prideful. Kant is democratic in this respect. He refuses to endorse class as a claim of right to do wrong. The contemporary criminalization of hate crimes reflects a similar disposition. Jean Hampton's approach to retributivism also focuses on negating unfounded claims of entitlement.
418. See infra notes 255-59 and accompanying text. Thomas Hill reads this passage slightly differently, but ultimately also reaches the conclusion that it does not provide grounds for thinking that Kant is giving leave for judges to vary punishments according to subjective factors.
419. Hill, supra note 125, at 434-37.
420. For a more expansive account of status inequality in crime and potential responses.
421. see David Gray, A No-Excuse Approach to Transitional Justice, 87 WASH. U. L. REV. 1043 (2010) [hereinafter Gray, No Excuse]
422. David Gray, Extraordinary Justice, 62 ALA. L. REV. (forthcoming 2011).
423. Other punishments suggested by Kant share this same intuitive appeal. For example, the punishment for murder is death.
424. KANT, supra note 14, at 106. Others are more elusive.
425. See, e.g., id. at 130 ("The punishment for rape and pederasty is castration ⋯ that for bestiality, permanent expulsion from civil society, since the criminal has made himself unworthy of human society."). Other crimes appear anachronistic.
426. See, e.g., id. at 108-09 (providing excuses for mothers who kill illegitimate children and killings perpetrated during duels). That these punishments may seem odd, anachronistic, or culturally bound is no criticism of the theory, however, because the contradiction posed by any maxim of action is in most cases determined by reference to contingent social and legal commitments.
427. See supra note 215.
428. This category includes many politicians, pundits, practitioners, and others who claim the mantle of retributivism. The sad fact is that many of these folks are not really retributivists at all. Rather, they mine moral outrage to justify ever more severe punishments that are hard if not impossible to justify under any traditional theory of punishment, including retributivism. This author shares in the unapologetic belief that we ought not endorse or accept individual sentences or a system of criminal punishments that cannot be justified by a coherent and persuasive theory of criminal law and punishment. Therefore, any claim that our current punitive practices do not conform, in even a rough way, to the terms and dictates of retributivism is a non sequitur in the present context. Here, the questions at issue are whether the subjectivist critique exposes a core incoherence in retributivism or whether subjectivism offers a superior theory of criminal punishment. The answer to both questions is definitively "no."
429. F. Allen, The Decline of the Rehabilitative Ideal 66 (1981) (describing just deserts theory)
430. Andrew von Hirsch, Doing Justice: The Choice of Punishments 51 (1976)
431. see also MOORE, supra note 122, at 84-92, 111.
432. HERBERT MORRIS, Persons and Punishment, in ON GUILT AND INNOCENCE 31, 34-35 (1979).
433. For a criticism of this view, see Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution 39 UCLA L. REV. 1659, 1660-61 (1992)
434. David Dolinko, Some Thoughts about Retributivism, 101 ETHICS 537, 545-49 (1991).
435. Morris, supra note 186.
436. Id. at 264.
437. RAWLS, supra note 205, at 241, 314-15, 575-76.
438. Sharon Dolovich provides a more elaborate account of a Rawlsian approach to punishment than Rawls ever did in Legitimate Punishment in Liberal Democracy, 7 BUFF. CRIM. L. REV. 307 (2004). Markel and Flanders have a different approach that also reflects shades of Rawls.
439. See Markel & Flanders,supra note 1 (distinguishing between comprehensive and political conceptions of retributive justice)
440. see also RAWLS, supra note 205, at 10 (arguing that punishment must be defined objectively as a restraint on liberty)
441. John Rawls, Two Concepts of Rules, 64 PHIL. Rev. 3 (1955)
442. Walker, supra note 42, at 534-36 (describing a "Rawlsian" moment of reasoning from the original position).
443. FLETCHER, supra note 190, at 459-60.
444. Id. at 461, 505-14.
445. FLETCHER, supra note 141, at 227-28.
446. As Fletcher points out, the rise of imprisonment as the main form of state-sanctioned punishment opens a space of ambiguity between criminal theory and penal practice.
447. Id. at 226.
448. HART, supra note 120, at 4.
449. Hart's general approach relies on utilitarian considerations when justifying systems of punishment and retributive grounds when addressing questions of distribution.
450. Id. at 5-11.
451. Kent Greenawalt offers a similar definition of punishment as involving "designedly unpleasant consequences" which most people would wish to
452. Greenawalt, supra note 141, at 343-44.
453. FLETCHER, supra note 141, at 228
454. see also HART, supra note 120, at 19-20, 24-25 (rejecting on various grounds subjective approaches to punishment)
455. Kolber, supra note 1, at 215 (recognizing that Hart defines punishment objectively).
456. But see Kolber, supra note 11, at 34 (acknowledging that "victim subjective experiences are generally relevant").
457. FLETCHER, supra note 141, at 228.
458. Fletcher's discussion neatly disposes of any normative significance that can be drawn from O. Henry's famous story The Cop and the Anthem, in which the homeless protagonist goes to great lengths to get himself incarcerated, where he hopes he will be warm, fed, and relatively safe.
459. Kolber, supra note 6, at 1580 n.42 (citing O. HENRY, The Cop and the Anthem, in THE RANSOM OF RED CHIEF AND OTHER O. HENRY STORIES FOR BOYS 143, 143 (Franklin J. Mathiews ed., 1918))
460. see also Kolber, supra note 1, at 205 ("Even though his liberty will be restricted when caught, he is not retributively punished when he is subsequently imprisoned, nor are his real-life counterparts. It is simply implausible that a person can be criminally culpable and thereby deserve to receive treatment that the offender affirmatively desires.").
461. FEINBERG, supra note 20, at 97-98.
462. Id. at 98-100.
463. Id.; see also Markel & Flanders, supra note 1, at 107 ("[R]etributive punishment ⋯ serves as an attempt to communicate to the offender society's condemnation.")
464. Dan Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 593 (1996) (arguing that "[pjunishment ⋯ is a special convention that signifies [society's] moral condemnation" of the offender).
465. FEINBERG, supra note 20, at 100.
466. For example, Feinberg analogizes punishment as a symbolic idiom for condemnation to champagne as a symbolic idiom for celebration.
467. Id. It is hard to see how the message of Ron Santo's popping the cork on a bottle of champagne after the Cubs win the World Series would be muddied for viewers if Santo actually hated the stuff.
468. Id. at 116-18.
469. But see Bronsteen et al., supra note 1, at 1077 (concluding that a "thoroughgoing expressivist theory that punishment involves only considerations of such disapproval would be unaffected by the phenomena we have emphasized")
470. Kolber, supra note 1, at 208-10 (claiming that expressivists must link symbolic semantics to profane subjective experiences).These arguments are addressed infra Part IV.B.
471. FEINBERG, supra note 20, at 118.
472. See generally Markel & Flanders, supra note 1.
473. See LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 89-96 (G.E.M. Anscombe trans., 1953).
474. Nino, supra note 20, at 94.
475. Id. at 102-03.
476. Nino argues that punishment systems and punishment in individual cases represent a disparity in the distribution of public burdens and benefits that can only be justified by reference to consent. Culpability for a crime, in his view, entails consensual loss of immunity from punishment.
477. Id.
478. Id. at 96-97, 102-03, 107-08.
479. See generally Hampton, supra note 20.
480. But see Deirdre Golash, The Retributive Paradox, 54 ANALYSIS 72, 73-78 (1994) (providing a pithy, if not entirely persuasive, critique of Hampton's theory).
481. See Hampton, supra note 20, at 117-19 (describing the moral education theory as concerned less with punishment for societal purposes and more with benefiting the offender with moral knowledge and freedom to autonomously correct her future behavior).
482. Hampton, supra note 233, at 1665-85
483. see also Bronsteen, supra note 203, at 1151 (citing unpublished data gathered by Kenworthey Bilz supporting Hampton's view).
484. But see Walker, supra note 42, at 531-32.
485. Hampton, supra note 20, at 128-29.
486. Hampton offers the example of a physician convicted of Medicare fraud who is sentenced to community service in a state clinic.
487. Id. at 128.
488. As she points out, attending to the sick need neither be painful nor unpleasant for the physician for his sentence to constitute " punishment" so long as his freedom is constrained and that constraint entails a moral lesson.
489. Id.
490. NOZICK, supra note 128, at 363-80.
491. Id. at 374-80.
492. See, e.g., Dan Markel, State Be Not Proud, 40 HARV. C.R.-C.L. L. Rev. 407, 411-13 (2005) (critiquing courts and commentators who make this conflation between retributive justice and vengeance).
493. See, e.g., FLETCHER, supra note 190, at 417 (proposing that " 'retribution' is not in itself an argument for making criminals suffer," but rather a means for offenders to correct the societal imbalance caused by criminal behavior)
494. Markel, supra note 262, at 411-13, 437-38 (arguing that the purpose of punishment is not revenge)
495. Morris, supra note 186, at 270 (positing that retributivists reject "like for like" punishment on moral grounds).
496. See Berman, supra note 25, at 8-9, 27-28 (categorizing the retributivist view as recognizing the "intrinsic value in the suffering of wrongdoers" rather than focusing on the value attributed to punishment by the plurality).
497. As Thomas Hill points out, in the ideal case an offender would experience guilt and moral suffering.
498. Hill, supra note 125, at 414-23.
499. As a solution for a race of devils, however, punishment under law is not defined or justified by the goal of inflicting guilt or moral suffering.
500. Gray, NoExcuse, supra note 228, at 1081.
501. First, organizing a public response to crime around the project of inspiring spontaneous subjective states would raise serious conceptional and practical concerns.
502. Id. at 1048-51, 1054-55, 1062-64.
503. Second, guilt and moral suffering are subjective and matters of private conscience.
504. KANT, supra note 14, at 106. By contrast, punishment under law is a public matter, which as a practice maintains that only "the law of retribution (ius talionis)-it being understood, of course, that this is applied by a court (not by your private judgment)-can specify definitely the quality and the quantity of punishment."
505. Id. To lump this sort of suffering in with suffering of concern for subjectivist critics would repeat the core equivocation exposed in this Article.
506. See 4 WILLIAM BLACKSTONE, COMMENTARIES *ll-20 (requiring proportionality of punishment)
507. NOZICK, supra note 128, at 363-65 (providing an objective formula for calculating the amount of punishment deserved by the degree of wrongness and the offender's responsibility).
508. FEINBERG, supra note 20, at 116-18.
509. See Bronsteen et al., supra note 3, at 1465-67, 1481 (arguing the importance of proportionality in punishment and the need to reform the criminal justice system to reflect that importance).
510. See MOORE, supra note 122, at 90-91 (proposing that while retributivism prefers that "Q]ike cases ⋯ be treated alike," it requires that punishment match desert).
511. Feinberg, Noncomparative Justice, supra note 68, at 300-01, 311-13, 318-19.
512. Id. at 311-13, 318-19.
513. See generally DEBORAH HELLMAN, WHEN IS DISCRIMINATION WRONG? (2008).
514. See Feinberg, Noncomparative Justice, supra note 68, at 311 (arguing that this analogy proves that "criminal desert is in part noncomparative," because it is possible to have a system where all punishments are unjust due to unreasonable severity).
515. While far from determinative in the present discussion, it is worth noting that the Supreme Court's death penalty jurisprudence appears to endorse an objective rather than subjective account of "punishment." In In re Kemmler, 136 U.S. 436, 447 (1890)
516. the Court confirmed that particularly barbaric punishments, such as disembowelment, are prohibited by the Eighth Amendment because "they involve torture or a lingering death" and are therefore "inhuman and barbarous, something more than the mere extinguishment of life." While it is not unreasonable to think that this "something more" is pain, the Court "has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment," Baze v. Rees, 553 U.S. 35, 48 (2008)
517. When asked to rule on the constitutionality of electrocution on particularly gruesome facts, the Court held that "[t]he cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely," Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947).
518. When asked to determine the constitutionality of imposing death on mentally impaired and juvenile offenders in Roper v. Simmons, 543 U.S. 551, 568-74 (2005)
519. Again in Atkins v. Virginia, 536 U.S. 304, 317-21 (2002)
520. The Court again adopted an objective view, focusing its attention on the moral culpability of these agents and our "evolving standards of decency," rather than the unique suffering members of these classes of offender might experience.
521. See also Graham v. Florida, 130 S. Ct. 2011 (2010) (adopting the same approach in holding that the Eighth Amendment prohibits sentencing juvenile offenders to life in prison without the possibility of release). However, one should not make too much of the Court's record in these matters. The Court has never squarely addressed the question whether punishment is suffering, and as a consequence is often less than clear on where it stands.
522. Kolber, supra note 6, at 1591.
523. See, e.g., Bronsteen et al., supra note 1, at 1068-74 (describing retributivist approaches to punishment as consistently objective)
524. Kolber, supra note 6, at 1585-94 (stating that "the currency of punishment is understood in objective terms.").
525. But see Kolber, supra note 1, at 203-08 (acknowledging that while valuing objectivity, for punishment to be successful, the offender must have some subjective awareness).
526. Kolber, supra note 1, at 203 (quoting RAWLS, supra note 205, at 10).
527. See Bronsteen et al., supra note 1, at 1068-69, 1072 n.166, for a discussion of accounting for subjectivity when analyzing punishment from a retributivist perspective.
528. Kolber, supra note 1, at 196-98.
529. Id. at 203
530. see also Bronsteen et al., supra note 1, at 1069 (endorsing Kolber's five arguments as their own).
531. Kolber, supra note 1, at 203; see also Bronsteen et al., supra note 1, at 1068, 1072 n.166 (agreeing with Kolber's assertion).
532. Kolber, supra note 1, at 203.
533. See Golash, supra note 256, at 73 (pointing out that appeals to intuition are "unsatisfactory" in part "because some have this intuition while others don't").
534. See Dolinko, supra note 233, at 557-58.
535. Id.
536. Kolber, supra note 1, at 203.
537. See Hampton, supra note 20, at 115-18 (clarifying the border between utilitarian and retributive theories of punishment by reference to the role of punishment in producing pain, which provides a "nonmoral" reason for compliance with law).
538. As an example, consider Kolber's discussion of "libertiles."
539. Kolber, supra note 6, at 1567-69.
540. To conceive of liberty as quantified according to the comparative value of that liberty to an agent or the fruits accrued through exploitation of that liberty collapses deontological accounts of justice and liberty into utilitarianism without argument or justification.
541. KANT, supra note 14, at 105
542. see also Berman, supra note 25 (exploring the theoretical difficulties that befall suffering-focused retributivists).
543. KANT, supra note 14, at 105.
544. Kolber, supra note 1, at 203-04
545. see also Bronsteen et al., supra note 1, at 1069 (adopting this argument).
546. Kolber, supra note 1, at 204.
547. Id.
548. Id. at 209 n.72.
549. See supra notes 255-259 and accompanying text.
550. NOZICK, supra note 128, at 368
551. Morris, supra note 186, at 264.
552. Panetti v. Quarterman, 551 U.S. 930, 954-60 (2007); Ford v. Wainwright, 477 U.S. 399, 401 (1986)
553. see also R.A. DUFF, TRIALS AND PUNISHMENTS 16-35 (1986).
554. See, e.g., FLETCHER, supra note 141, at 228
555. Hampton, supra note 20, at 128-29.
556. KANT, supra note 14, at 107
557. see also MORRIS, supra note 232, at 48-49
558. NOZICK, supra note 128, at 370-80
559. Hill, supra note 125, at 439.
560. Kolber, supra note 1, at 212
561. see also Bronsteen et al., supra note 1, at 1037-38, 1068-70.
562. It is the logical implication from Bronsteen, Buccafusco, and Masur's discussion that the same would be true of an offender who "views incarceration as a badge of honor."
563. See Bronsteen et al., supra note 1, at 1077 (discussing offender perception within the context of expressive theories).
564. FOUCAULT, supra note 35, at 3-6.
565. Kolber, supra note 1, at 204 (emphasis added).
566. Again, Bronsteen, Buccafusco, and Masur fully endorse Kolber's views on this point.
567. Bronsteen et al., supra note 1, at 1068-69.
568. Kolber, supra note 1, at 204, 215.
569. See FLETCHER, supra note 141, at 228 (noting that substance of punishment is "always whether the sanction is typically or characteristically onerous, not whether the sanction is experienced as punishment in the particular case").
570. Kolber, supra note 1, at 205
571. see also Bronsteen et al., supra note 1, at 1070-73 (arguing that adaptive capacities undermine the balancing of desert and punishment in pure retributivism).
572. Kolber, supra note 1, at 205
573. see HART, supra note 120, at 11 (discussing the "distribution" of punishment as who may be punished and by how much)
574. Murphy, Does Kant, supra note 196, at 530 (discussing Kant's views on proportionality as balancing punishment "against the offense for which [it] is administered")
575. see also Feinberg, Noncomparative Justice, supra note 68, at 311 (arguing that criminal desert is necessarily in part noncomparative).
576. Feinberg considers the vivid example of a system where beheading and disembowelment became the standard punishment for overtime parking
577. Id.
578. As he points out, such a punishment is objectively unjust, and [m]oreover, it would be unjust even if it were the mildest penalty in the whole system of criminal law, with more serious offenses punished with proportionately greater severity still.
579. Id.
580. Kolber, supra note 1, at 235.
581. Id. at 207
582. see also Bronsteen et al., supra note 1, at 1069 (adopting this argument).
583. See supra Part II.B.
584. Kolber, supra note 6, at 1585-86.
585. Id. at 1586.
586. Retributivists must accept some portion of the responsibility here for choosing the word "deprivation," when "constraint" is probably more accurate.
587. Kolber, supra note 1, at 207
588. see also Kolber, supra note 6, at 1587 (describing the variety of baseline states through the analogy of the abducted drug dealer).
589. Kolber, supra note 6, at 1587-89, 1593-94.
590. Id. at 1590.
591. Id.
592. Id. at 1590 n.65.
593. See, e.g., 1 BLACKSTONE, supra note 266, at *40 (arguing that laws, discoverable by application of reason, and by which "freewill is in some degree regulated and restrained," are necessary conditions of justice)
594. THOMAS HOBBES, LEVIATHAN 78 (Edwin Curley ed., 1994) 316.(determining that reason pushes individuals toward societal obligations or "peace" in order to protect individual liberty from all others in society who are also driven by "passions")
595. Immanuel Kant, Idea for A Universal History with a Cosmopolitan Intent (1784), reprinted in KANT: POLITICAL WRITINGS 41, 46-48 (Hans Reiss ed 1991) (positing that freewill "unconsciously promote[s] an end," whereby being forced to relinquish freewill ensures lasting freewill for all)
596. KANT, supra note 14, at 89-90 (proposing that without law, "individual human beings, peoples, and states can never be secure against violence from one another," thereby requiring prohibitions on behavior ultimately to protect individual freedom)
597. KANT, RELIGION, supra note 217, at 104-05 (stating that law is required to contain the private feelings of individuals).
598. See, e.g., RAWLS, supra note 205, at 201-05 (clarifying "the meaning of the priority of liberty" and the loss thereof).
599. Kolber, supra note 6, at 1587-89, 1593-94.
600. Dan Markel and Chad Flanders make a similar point.
601. See Markel & Flanders, supra note 1, at 170-78.
602. Kolber, supra note 1, at 232.
603. See Bronsteen et al., supra note 3, at 1463-67 (arguing that evidence of prisoners' adaptability should inform the theory and practice of punishment)
604. Bronsteen et al., supra note 139, at 1641 ("[Governments and policymakers should adopt a decision procedure based upon subjective well-being ⋯ .")
605. Kolber, supra note 11, at 4 ("If we seek to have justified criminal justice practices, then we need to consider subjective experience more than we do now.").
606. Lon L. Fuller, Positivism and Fidelity to Law-A Reply to Professor Hart, 71 HARV. L. REV. 630, 631 (1958).
607. Kolber, supra note 6, at 1569-70
608. Kolber, supra note 1, at 186-87.
609. Kolber, supra note 6, at 1569-70.
610. For a useful discussion of the relationship between criminal justice and distributive justice
611. see Stuart P. Green, Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders, 2010 U. CHI. LEGAL F. (forthcoming 2010), available at http://ssrn.com/abstract=1511732
612. Feinberg, Noncomparative Justice, supra note 68, at 300-01, 311-13.
613. Kolber, supra note 1, at 212.
614. See, e.g., Green, supra note 327 (manuscript at 2-5) (explaining that the poor account for a disproportionately high percentage of crime victims and criminal offenders)
615. OFFICE OF THE Surgeon Gen., U.S. Dep't of Health and Human Servs., Youth Violence: A Report of the SURGEON GENERAL ch. 4, http://www.surgeongeneral.gov/ library/youthviolence/toc.html (last visited Sept. 10, 2010) ("Race is a proxy for other known risk factors-living in poor, single parent families, doing poorly at school, and being exposed to neighborhood disadvantage, gangs, violence, and crime.").
616. See U.S. Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (Feb. 1995) [hereinafter Special Report] (recommending that Congress reduce the 100:1 ratio of sentences imposed for crack and powder cocaine offenses).
617. See Green, supra note 327; Special Report, supra, note 331.
618. Feinberg, Noncomparative Justice, supra note 68, at 301.
619. See Kolber, supra note 6, at 1567-69 (discussing how, for example, "[r]ich people have rights to use particular property that poor people lack," which suggests that rich people have higher baseline conditions).
620. See Kolber, supra note 1, at 230-31 ("All else being equal, as an empirical matter, wealthy people are likely to suffer more intensely in prison than those with less wealth who are placed in the same prison conditions.").
621. Id. at 219
622. ("[T]he only way to avoid the obligation to take the subjective experience of punishment into account is to abolish punishment entirely.").
623. See Bronsteen et al., supra note 1, at 1055-68 (discussing the applications of subjectivist findings on hedonic adaptation, forecasting, and post-prison effects to utilitarian theories of punishment)
624. Kolber, supra note 1, at 236 (maintaining that consequentialists are already "quite receptive to the claim that they are prima facie obligated to take account of actual or anticipated subjective experiences").
625. See infra Part VI.
626. Kolber, supra note 1, at 219.
627. Jeremy Bentham, Principles of Penal Law, reprinted in The Works of Jeremy BENTHAM 365, 395-96 (John Bowring ed., Russell & Russell 1962) (1843). There is good reason to doubt the model of agency implied by this model.
628. See, e.g., David J. Pyle, The Economic Approach to Crime and Punishment, 6 J. INTERDISC. ECON. 1, 4-8 (1995)
629. Paul Robinson & John Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 GEO. L.J. 949, 951-53 (2003). Present purposes do not require taking a position in this debate.
630. For an extensive discussion of these timing issues
631. see Markel & Flanders, supra note 1, and Bronsteen et al., supra note 3. Kolber argues that we should nevertheless factor in the subjective differences among defenders because offenders sensitive to imprisonment will be more sensitive to threats of imprisonment while offenders less sensitive to imprisonment will be less sensitive to threats of imprisonment.
632. Kolber, supra note 1, at 217. This is a dubious claim, particularly in light of studies cited by Bronsteen, Buccafusco, and Masur
633. supra note 1, at 1041-45, suggesting that most of us are quite bad at forecasting our actual sensitivities to stimuli.
634. See also Kolber, supra note 1 at 211 & n.79, 217 (conceding that individuals may not be good predictors of their future responses to punishment). Setting those issues aside, this response is, strictly speaking, a non sequitur, both because it addresses specific rather than general deterrence and because it fails to respect the important line between ex post and ex ante that is central to deterrence policy and analysis.
635. It is worth pointing out that the most effective contributors to these perceptions are likely not the actual, real-time, subjective experiences of prisoners, but a constellation of actual and purported reports of those experiences. Television shows, movies, media reports, etc., are probably far more influential contributors to the general deterrence effects of punishment than the actual experiences of real offenders.
636. Bronsteen et al., supra note 1, at 1060.
637. Id. at 24
638. Kolber, supra note 1, at 216-18, 218 n.101.
639. HART, supra note 120, at 19.
640. Id.
641. Bronsteen et al., supra note 1, at 1058-62.
642. Id. at 1044.
643. Dan Markel and Chad Flanders make this point powerfully in Bentham on Stilts
644. supra note 1.
645. See also, RAWLS, supra note 205, at 9.
646. ("[I[f some kind of very cruel crime becomes common, and none of the criminals can be caught, it might be highly expedient, as an example, to hang an innocent man, if a charge against him could be so framed that he were universally thought guilty; indeed this would only fail to be an ideal instance of utilitarian 'punishment' because the victim himself would not have been so likely as a real felon to commit such a crime in the future; in all other respects it would be perfectly deterrent and therefore felicific") (internal citation omitted).
647. See supra Parts I, III.C.3.
648. Bronsteen et al., supra note 1, at 1046-49.
649. Id. at 1058-61.
650. MILL, supra note 56, at 7.
651. Id. at 8.
652. Id. at 10.
653. But see HERMAN MELVILLE, TYPEE: A PEEP AT POLYNESIAN LIFE 178-83 (John Bryant ed., Penguin Books 1996) (1846).
654. See, e.g., KRAUT, supra note 31
655. AMARTYA Sen, THE IDEA OF JUSTICE 225-317 (Harvard Univ. Press 2009)
656. Nussbaum, Capabilities, supra note 31
657. Nussbaum, supra note 30.
658. See, e.g., Nussbaum, Capabilities, supra note 31.
659. See NUSSBAUM, FRONTIERS supra note 31.
660. KRAUT, supra note 31, at 131.
661. See, e.g., MILL, supra note 56, at 8-10 (discussing an example of a criticism).
662. E.g., Nussbaum, supra note 30, at 99-103.
663. Academics, for example.
664. See, e.g., THE STATLER BROTHERS, Flowers on the Wall, on FLOWERS ON THE WALL (Columbia Records 1965) ("Countin' flowers on the wall/That don't bother me at all/Playin' solitaire till dawn with a deck of fifty-one/Smokin' cigarettes and watchin' Captain Kangaroo/Now don't tell me I've nothin' to do.").
665. Nussbaum, supra note 30, at 86-88.
666. The literature is rife with more profound questions ranging from Robert Nozick's ethical turn on brain-in-a-vat problems to challenges posed by cultural relativists, which are topics for late-night dorm conversations at universities and colleges the world over. It is beyond the scope of this Article to take up those discussions, but the fact that they can be had comes close to proving that the point apparently is lost on Bronsteen, Buccafusco, and Masur, who attempt to draw normative conclusions from the literature on hedonic adaptation.
667. Bronsteen et al., supra note 1, at 1049-55.
668. Id.
669. See supra note 102.
670. Fuller, supra note 324, at 643.
671. Sentencing Memorandum at 14-15, Simon v. United States, No. CR-90-216 (E.D.N.Y. March 17, 2005), available at http://www.nyed.uscourts.gov/pub/ rulings/cr/2005/90cr216sm31705.pdf.
672. KANT, supra note 14, at 107-08.
673. See, e.g., Cooey v. Strickland, 589 F.3d 210, 215 (6th Cir. 2009)
674. Emmett v. Johnson, 532 F.3d 291, 292-93 (4th Cir. 2008)
675. Hamilton v. Jones, 472 F.3d 814, 816-17 (10th Cir. 2007).
676. See supra note 274.
677. See Gray & Huber, supra note 18 (arguing on retributivist grounds for progressive changes to American criminal law and punishment policy).
678. KANT, supra note 14, at 105.