Retribution and the experience of punishment

California Law Review

Volumn 98, Issue 5, 2010, Pages 1463-1496

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

^a LOYOLA UNIVERSITY CHICAGO   (United States)

^b CHICAGO KENT COLLEGE OF LAW   (United States)

^c UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 78651293232     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (177)

1. John Bronsteen, Christopher Buccafusco & Jonathan S. Masur ("BBM"), Welfare as Happiness, 98 GEO. L.J. 1583 (2010) [hereinafter BBM, Welfare as Happiness]; John Bronsteen, Christopher Buccafusco & Jonathan Masur, Happiness and Punishment, 76 U. CHI. L. REV. 1037 (2009) [hereinafter BBM, Happiness and Punishment];
2. John Bronsteen, Christopher Buccafusco & Jonathan S. Masur, Essay, Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 COLUM. L. REV. 1516 (2008) [hereinafter BBM, Hedonic Adaptation].
3. BBM, Happiness and Punishment, supra note 1, at 1045-49 (collecting studies).
4. Id.
5. Adam J. Kolber, Essay, The Subjective Experience of Punishment, 109 COLUM. L. REV. 182 (2009);
6. Adam J. Kolber, The Comparative Nature of Punishment, 89 B.U. L. REV. 1565 (2009).
7. BBM, Happiness and Punishment, supra note 1, at 1069 ("According to Kolber, different individuals' experiences of punishment must be taken into account. His arguments to that end support our contentions as well, and we refer readers to those arguments.").
8. Id. ("[W]e credit his position.").
9. Id. ("[E]ven if a retributivist were to reject Kolber's claims by saying that the only relevant consideration is the way that a typical person would experience punishment, hedonic adaptation would still be relevant because it affects that typical experience.").
10. Id. at 1055-68 (utilitarian theories), 1068-80 (retributive theories).
11. See Dan Markel & Chad Flanders (MF'), Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, 98 CALIF. L. REV. 907, 910 (2010) [hereinafter MF, Bentham on Stilts] ("[W]e agree that retributivist policymakers should be sensitive to knowledge of human psychology and social norms when crafting laws and setting sentencing policy ").
12. Id. at 910-11 ("[0]ur 'concessions' to the importance of subjectivity are minor and provide little basis for debate."), 914 n.26 ("[W]hat is novel and nontrivial in what [the subjectivists] say is, in our opinion, false or unpersuasive.").
13. Id. at 911.
14. See, e.g., id. at 973 ("[S]ociety is justified in believing that more (objective) punishment communicates a stronger message of condemnation.").
15. David C. Gray, Punishment as Suffering, 63 VAND. L. REV. (forthcoming 2010) (manuscript at 145-46) (on file with authors) ("Neither is the amount or degree of suffering experienced subjectively by an offender the measure of punishment. Rather, punishment is the objectively determined, logical consequence of a crime⋯.").
16. MF, Bentham on Stilts, supra note 9, at 924-25 n.64 ("[W]e do not intend to register a substantial quarrel with the accuracy ot the empirical work cited and relied on by BBM[.J").
17. Id at 968-73.
18. E. THOMAS SULLIVAN & RICHARD S. FRASE, PROPORTIONALITY PRINCIPLES IN AMERICAN LAW: CONTROLLING EXCESSIVE GOVERNMENT ACTIONS 129 (2009);
19. see, e.g., Joel Feinberg, The Expressive Function of Punishment, in DOING AND DESERVING: ESSAYS IN THE THEORY OF RESPONSIBILITY 95, 118 (1970)("[M]ore serious crimes should receive stronger disapproval than the less serious ones") Andrew von Hirsch, Censure and Proportionality, in A READER ON PUNISHMENT 128 (R.A. Duff & David Garland eds., 1994)("Persons convicted of crimes of differing gravity should receive punishments correspondingly graded in their degree of severity.")
20. MICHAEL MOORE, PLACING BLAME: A GENERAL THEORY OF THE CRIMINAL LAW 88 (1997) ("True enough, retributivists at some point have to answer the 'how much' and 'what type' questions for punishments of specific offenses, and they are committed to the principle that punishment should be graded in proportion to desert; but they are not committed to any particular penalty scheme nor to any particular penalty as being deserved.")
21. Richard S. Frase, Limiting Retributivism, in THE FUTURE OF IMPRISONMENT 83, 112 (Michael Tonry ed., 2004) ("However, many ⋯ systems give too little weight to the important values of uniformity and proportionality ⋯ ."); STEPHEN KERSHNAR, DESERT, RETRIBUTION, AND TORTURE 36 (2001) ("Our intuitions suggest that deserved punishment and the amount of punishment someone deserves correlate with culpable wrongdoings rather than with a person's bad moral character.") (emphasis added).
22. See Alice Ristroph, Proportionality as a Principle of Limited Government, 55 DUKE L.J. 263,279-84 (2005).
23. See Gray, supra note 13, at 113.
24. See MF, Bentham on Stilts, supra note 9, at 910.
25. In other words, the difference in the amount of negative experience typically imposed by a fine of 2X dollars and by a fine of X dollars is far smaller than is typically assumed, and far smaller than would be the case absent adaptation. The same goes for a prison sentence of 2X years as compared with one of X years.
26. See MF, Bentham on Stilts, supra note 9, at 973 ("[S]ociety is justified in believing that more (objective) punishment communicates a stronger message of condemnation.").
27. See id.
28. There may be other requirements for legitimacy, but they are irrelevant to the particulars of our dialogue with MF.
29. Gray, supra note 13, at 151-52.
30. The only suggestion that he offers is that the appropriate punishment for theft is to deny the offender access to property because the offender's action was "a contradiction to the concept of ownership." Id. at 146. We doubt whether Gray truly subscribes to a view of retributivism so closely aligned with lex talionis
31. Id. at 152.
32. See M.F. Bentham on Stills, supra note ,at 946
33. Two points should be noted. First, we reiterate our agnosticism about whether the actual differing experiences of individual criminals are relevant. Maybe they are, and maybe they are not. Either way, what we seek to demonstrate is merely that the typical experience matters in framing punishments. Second, whether it matters that people's "understanding" of punishment's message be based on correct assumptions is the issue to which the next Section is devoted.
34. MF write: "Retributive punishments are not, on our view, about negative experiences. They are about creating the conditions through communicative actions to get the offender to understand that his actions are being condemned for violating the rule of law." MF, Bentham on Stilts, supra note 9, at 973. Our rejoinder is that the principal condition for understanding the communicated message is precisely that something is being imposed on the offender that is typically experienced as negative. In the passage just quoted, MF seem to reject that view. But they say nothing about what feature of punishment does the communicative work, if it is not the imposition of something typically experienced as negative. They drop a footnote "adverting to John Finnis' view on the matter," 26 id. at 973 n.236, which they in turn quote in another footnote, id. at 922 n.52. Finnis says that "[t]he essence of punishments ⋯ is that they subject offenders to something contrary to their wills." Id. (quoting John Finnis, Retribution: Punishment's Formative Aim, 44 AM J. JURIS. 91, 98 (1999)). But as we have explained in considerable detail elsewhere, people's will (i.e., what people want) is typically to have positive rather than negative experience; and to the extent that will can theoretically diverge from experience, it is the experience that matters more. See BBM, Welfare as Happiness, supra note 1.
35. BBM, Happiness and Punishment, supra note 1, at 1068.
36. We attribute this approach to MF because we assume their goal is to maintain fidelity to their communicative theory while still denying that the experience of punishment is important to retributive theory. We think that the latter claim is unsustainable, and if MF prefer to agree with us that experience (including adaptation) is important, then so much the better.
37. It should be noted, for the sake of disentangling the separate issues here, that any statement by society that an offender has acted unacceptably is likely to cause negative experience for the offender by virtue of the shaming effect of such a statement. The question, though, is this: when society chooses to do more than just make a verbal or symbolic statement and instead does something to the offender, why does the something always seem to involve the imposition of that which is typically experienced as negative? The answer is that the measures society uses to punish (i.e., the things that are done beyond the mere statement of condemnation) communicate condemnation because and insofar as they impose negative experience.
38. The word "always" invites counterexamples. We can think of none, but even if a few were to exist, their rarity would speak volumes about the connection between punishment and negative experience.
39. As Jean Hampton explains, "The way to communicate to [cnminalsj that there is a barrier of a very special sort against these kinds of actions would seem to be to link performance of the actions with what such people care about most-the pursuit of their own pleasure." Jean Hampton, The Moral Education Theory of Punishment, in PUNISHMENT: A PHILOSOPHY AND PUBLIC AFFAIRS READER 112,130 (A. John Simmons et al. eds., 1995). According to von Hirsch, The censure and the hard treatment are intertwined in the way punishment is structured. A penal measure provides that a specified type of conduct is punishable by certain onerous consequences. Those consequences both constitute the hard treatment and express the reprobation. Altering those consequences-by raising or lowering the penalty on the scale-will alter the degree of censure conveyed, von Hirsch, supra note 16, at 124. Similarly, Feinberg writes, "Given our conventions, of course, condemnation is expressed by hard treatment, and the degree of harshness of the latter expresses the degree of reprobation of the former." FEINBERG, supra note 16, at 118. Other retributivists are largely in accord.
40. See, e.g., NORVAL MORRIS & MICHAEL TONRY, BETWEEN PRISON AND PROBATION: INTERMEDIATE PUNISHMENTS IN A RATIONAL SENTENCING SYSTEM 93 (1990) ("[F]rom a moral perspective, the measure of punishment is not its objective appearance but its subjective impact.
41. "); H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 4 (1968) (stating that punishment "must involve pain or other consequences normally considered unpleasant")
42. GEORGE P. FLETCHER, THE GRAMMAR OF CRIMINAL LAW 228 (2007) ("The question is always whether the sanction is typically or characteristically onerous ⋯ .").
43. But see Kenneth W. Simons, Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment, 109 COLUM. L. REV. SIDEBAR 1,2 (2009), http://www.columbialawreview.org/Sidebar/volume/109/l-Simons.pdf. Douglas Husak equivocates somewhat between these two views.
44. See Douglas N. Husak, Retribution in Criminal Theory, 37 SAN DIEGO L. REV. 959, 973 (2000) ("My point is that the fit we intuit does not really obtain between crime and punishment, but rather between crime (as culpable wrongdoing) and suffering (or deprivation or hardship).").
45. We occasionally, as here, use words such as "negative experience" as shorthand for the phrase "something that is typically experienced as negative." We have been very clear that our claims refer to the latter-typical experience.
46. What we mean by the sentence in the main text is actually this more cumbersome formulation: "For the same reason that imposing something believed to be typically experienced as negative communicates condemnation, imposing something believed to be typically experienced as more negative communicates greater condemnation than imposing something believed to be typically experienced as less negative." As we explain in the next Section, the state may be able to communicate condemnation even if people's understanding of the message is based upon mistaken beliefs about negative experience. But that fact reveals the problems of a theory based solely on communication, not the irrelevance of the truth about negative experience.
47. Again, we do not mean to imply that all or even many retributivists will adopt this position. We mean only to describe a position that some retributivists might take so we can explain our response to that stance.
48. In other words, what makes a monetary fine of 2X dollars communicate more condem-nation than a monetary fine of X dollars? We claim that people's understanding of the social meaning of these punishments-i.e., that the larger fine communicates greater condemnation than the smaller one-derives primarily, if not entirely, from an assumption that the larger fine typically imposes more negative experience than the smaller one. If MF believe that the primary reason for people's understanding of this message is something other than people's assumptions about typical negative experience, then we would like to know what that "something" is.
49. Importantly, the retributivists cited by Gray proposition. See supra note 34.
50. See Gray, supra note 13, at 131.
51. BBM, Welfare as Happiness, supra note 1 at 18-20.
52. See, e.g., Hampton, supra note 34, at 130.
53. See generally BBM, Welfare as Happiness, supra note 1.
54. People adapt quickly to monetary losses, but the initial experience of the loss is negative. Ed Diener et al., The Relationship Between Income and Subjective Weil-Being: Relative or Absolute?, 28 Soc. INDICATORS RES. 195,221 (1993);
55. Deborah A. Kermer et al., Loss Aversion Is an Affective Forecasting Error, 17 PSYCH. SCI. 649, 652 (2006).
56. MF, Bentham on Stilts, supra note 9, at 973; see also Gray, supra note 13, at 151-52 ("[P]unishment for retributivists is, or ought to be, justified, measured, and described solely in objective or perhaps intersubjective terms by reference to the offender's culpability in a crime. The suffering experienced by a particular offender subjected to the punishment he objectively deserves is therefore incidental, and retributivists bear no responsibility for justifying that suffering.").
57. MF, Bentham on Stilts, supra note 9, at 956.
58. E.g., id. at 973.
59. E.g., id.
60. We use the word "might" because someone could learn the truth while still realizing that the state has not learned it, and therefore the person could still understand the message the state aims to convey via punishment. By contrast, if everyone really knew that larger fines typically impose no more negative experience than smaller fines, then largerfines would cease to communicate more condemnation. The extra monetary deprivation would be no different from giving someone beads to signify greater condemnation: any communicative message would derive from pure symbolism, and whatever was sought to be gained by fining people rather than by merely telling them that their acts were especially unacceptable, would not be accomplished. If this seems counterintuitive, then that is only because people assume strongly that money correlates with positive experience. Like many strong assumptions, this one is called into question by empirical evidence. Moreover, as we explain below, we believe that if someone learned the truth about adaptation while realizing that most other people's perceptions (and those of the state) remained unchanged, this revelation would matter a lot to the person. Even though the communicative message remained intact (due to the state's perceptions and those of most people), the legitimacy and success of the punishment system would nonetheless be undermined. The truth regarding negative experience matters, independent of the perceptions that may persist.
61. The evidence suggests that fines and incarcerations do typically impose negative experience, but that greater ones do not typically impose nearly as much greater negativity than lesser ones as is assumed.
62. That is, someone with equal income and wealth. We mean to bracket the issue of scaling fines to wealth.
63. This is the argument we made in the previous Section.
64. See BBM, Happiness and Punishment, supra note 1, at 1045-46.
65. Compare MF, Bentham on Stilts, supra note 9, at 924-25 n.64 ("[W]e do not intend to register a substantial quarrel with the accuracy of the empirical work cited and relied on by BBM . ⋯") with id. at 909 ("[W]e argue that these claims are, from a policy perspective, either true but of minor significance (since most retributivists will agree with them), or else nontrivial but unsound.")- It is worth pointing out that most retributivists agreeing with something does not make it trivial. If MF agree that adaptation should be incorporated into the ex ante framing of retributive punishments, then they have thereby acknowledged its importance.
66. Again, see the previous Section for this argument.
67. We recognize that MF describe their view as focusing on "understanding," but as we have explained, people's understanding of the communication can be (and, we believe, actually is) predicated on the mistaken perception that, for example, larger fines typically impose substantially more negative experience than smaller ones. If MF's theory deems important the fact that this perception is mistaken, then MF's theory deems important hedonic adaptation. If MF's theory does not deem important the fact that this perception is mistaken, then MF's theory is implausible because it accords insufficient value to the truth.
68. To reiterate, MF's project is not to dispute the empirical evidence of hedonic adaptation but rather to argue that even if it is true, it is of only trivial importance to punishment theory. In other words, the question is this: assuming, arguendo, that these widespread misperceptions exist, does that matter? The claim that it does not matter is untenable because people care a lot about the truth and will be dissatisfied with a theory that does not care about it.
69. The evidence is actually that incarcerations do typically impose far more negative experience than fines. However, very large fines may not impose much more negative experience than very small ones. In any event, MF's position commits them to claiming that the typical experience of punishment does not matter no matter what it is (for example, even if murderers typically received nothing worse than larcenists), so long as the truth about this does not affect the reasonable person's understanding of the state's message.
70. MF, Bentham on Stilts, supra note 9, at 909 n.8, 931,933-934, 936,948, 948 n.159.
71. See id. at 968 ("[UJnder our communicative conception of retributive justice, that communication ends when the state stops speaking to the offender via state-sanctioned punishment. When the state releases the offender and extinguishes any remaining conditions, it has said all it had to say.")- The clear implication is that the state is not "done saying all it has to say" until the offender is released from prison.
72. To reiterate yet again, MF may not believe that people adapt to prison (although the evidence supporting that claim is substantial), but that is beside the point of this dialogue. MF have chosen to argue that even if adaptation is true, it is of bare relevance to punishment theory.
73. We suppose that MF could argue that condemnation is communicated so long as offenders think that the public or the state believes the offenders will receive some subjective deprivation. If this is MF's view, it seems particularly vulnerable to the first two arguments we made in this Section-about the problems with basing a theory on perception rather than reality. Moreover, such a view seems like a distinctly unappealing theory of punishment. Suppose that parents punish their child by making her stay in her room for a time, but it turns out that unbeknownst to the parents, the child loves staying in her room. Even if the child understands that the parents intend to communicate condemnation, we believe that most people would say that the punishment has not worked in some important way. Criminals are not children nor the state their parent, but the same point holds true for criminal punishment.
74. See id. at 968 ("[UJnder our communicative conception of retributive justice, that communication ends when the state stops speaking to the offender via state-sanctioned punishment. When the state releases the offender and extinguishes any remaining conditions, it has said all it had to say.")- The clear implication is that the state is not "done saying all it has to say" until the offender is released from prison.
75. To reiterate yet again, MF may not believe that people adapt to prison (although the evidence supporting that claim is substantial), but that is beside the point of this dialogue. MF have chosen to argue that even if adaptation is true, it is of bare relevance to punishment theory.
76. We suppose that MF could argue that condemnation is communicated so long as offenders think that the public or the state believes the offenders will receive some subjective deprivation. If this is MF's view, it seems particularly vulnerable to the first two arguments we made in this Section-about the problems with basing a theory on perception rather than reality. Moreover, such a view seems like a distinctly unappealing theory of punishment. Suppose that parents punish their child by making her stay in her room for a time, but it turns out that unbeknownst to the parents, the child loves staying in her room. Even if the child understands that the parents intend to communicate condemnation, we believe that most people would say that the punishment has not worked in some important way. Criminals are not children nor the state their parent, but the same point holds true for criminal punishment. punishment based upon retributivism's own principles.
77. Id. at 140 ("[R]etributivism defines punishment as a restraint on liberty or other consequence that is determined and justified objectively by reference to a culpable offense.").
78. MF, Bentham on Stilts, supra note 9, at 973.
79. Again, we do not mean to imply that all or even many retributivists will adopt this position.
80. MF, Bentham on Stilts, supra note 9, at 967-73.
81. Gray, supra note 13, at 130.
82. See, e.g., BBM, Happiness and Punishment, supra note 1, at 1049-53.
83. As we argue in Happiness and Punishment, these post-incarceration consequences differ from the prison experience by being largely unadaptable. Id. at 1052. The effects of disease, unemployment, and lost social and family ties will likely be felt for a considerable time after an inmate has been released.
84. See MF, Bentham on Stilts, supra note 9, at 968.
85. See id.
86. By "count" we mean harms that are "relevant for purposes of proportionality" or harms for which "the state bears responsibility.
87. MF, Bentham on Stilts, supra note 9, at 968 ("proximately caused").
88. Gray misses this point entirely when he suggests that we might believe that all types of suffering constitute punishment. Gray lists being struck down by the flu, cancer, lightning, or a bus as examples of suffering that are not punishment. Gray, supra note 13, at 127. Quite obviously none of that suffering was proximately caused by the state.
89. MF's opinion about disease is unclear. They write: "[W]e think that diseases or disabilities contracted by an offender during punishment on account of poor or squalid conditions of confinement raise different issues." MF, Bentham on Stilts, supra note 9, at 971 n.230. They do not, however, indicate what those issues might be.
90. See generally H.L.A. HART & ANTHONY HONORS, CAUSATION IN THE LAW (2d ed. 1985);
91. MICHAEL S. MOORE, CAUSATION AND RESPONSIBILITY (2009).
92. WAYNE R. LAFAVE, CRIMINAL LAW 332 (4th ed. 2003).
93. MF, Bentham on Stilts, supra note 9, at 971 ("It may even be that but for the state's punishment of the offender, the offender would not experience those harms ⋯.").
94. Obviously, not all negative post-prison outcomes will be factually caused by incarceration. For example, an offender's wife might divorce him not because he was incarcerated but because he murdered her family.
95. See generally HART & HONORE, supra note 78.
96. See LAFAVE, supra note 79, at 336-58.
97. If MF have another standard of proximate cause in mind, they do not so indicate.
98. MF might deem this confinement cruel and therefore illegitimate, but that is beside the point. Bracketing the issue of the legitimacy of the incarceration itself, the question is whether it is additionally unacceptable to have created conditions such that upon release, the offender would likely become blind.
99. Obviously, if an inmate contracts a disease due to his personal choice to engage in risky sex that happens to occur within prison, the harm from the disease would not be proximately caused by the prison environment. Gray raises the interesting issue of prison sexual violence, which he views as an independent criminal act outside of the state's responsibility. Gray, supra note 13, at 131-32. While independent criminal conduct is obviously relevant to a proximate cause inquiry, it is not, on its own, sufficient to break the causal chain. See Brauer v. N.Y. Cent. & H.R.R. Co., 103 A. 166 (N.J. 1918). Where that conduct is foreseeable and where other decisions by the state potentially increase its likelihood, there are good reasons to hold the state morally responsible for even independent criminal acts.
100. We fail to see how MF's willingness to compensate these prisoners via tort remedies addresses the issue of whether those prisoners have been punished more. MF, Bentham on Stilts, supra note 9, at 971 n.230.
101. Id. at 971 (emphasis in original).
102. For example, the state could punish via imprisonment, fines, beatings, shaming, probation, community service, or talion, to name a few. On the practice of talion, see WILLIAM IAN MILLER, EYE FOR AN EYE 20-24 (2006).
103. Dan Markel, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 VAND. L. REV. 2157, 2163 n.28 (2001).
104. See Bruce Western, Jeffrey R. Kling & David F. Weiman, The Labor Market Consequences of Incarceration, 47 CRIME & DELINQUENCY 410, 412 (2001);
105. DEVAH PAGER, MARKED: RACE, CRIME, AND FINDING WORK IN AN ERA OF MASS INCARCERATION 32-35 (2007).
106. See generally BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA (2006).
107. See BBM, Happiness and Punishment, supra note 1, at 1046-49.
108. See id. at 1051.
109. See Jason Schnittker & Andrea John, Enduring Stigma: The Long-term Effects of Incarceration on Health, 48 J. HEALTH & See. BEHAV. 115, 117 (2007) (noting that the "prison environment may foster psychological orientations that prevent integration and intimacy, including suspicion and aggression").
110. In a reply to Adam Kolber's argument that retributivists must accommodate subjective experiences into proportionality calculus, Kenneth Simons contends that the state need not adjust its punishments to individuals' sensitivities because it is not responsible for those sensitivities. Simons, supra note 34, at 6. But unlike an inmate's claustrophobia, her post-prison psychological dysfunction is caused by the prison environment.
111. This situation is different from one in which the ex-prisoners are less attractive as employees, spouses, and friends because of the nature of their offense. In such a case, these harms cannot be said to result from state-sanctioned punishment.
112. MF wonder whether the state should also be responsible for the positive effects of prison on prisoners. For example, they ask whether our argument would recognize the benefits a prisoner received if, while in prison, he fell in love with his prison guard and married her upon his release. MF, Bentham on Stilts, supra note 9, at 970. Our response is that of course this would matter to punishment proportionality //the typical experience of inmates was to find romantic love during the period of their incarceration. It should be quite obvious that prison is generally under-stood as a negative experience in part because most prisoners do not have such an experience.
113. MF, Bentham on Stilts, supra note 9, at 968-69 ("[CJommunication ends when the state stops speaking to the offender via state-sanctioned punishment. When the state releases the offender and extinguishes any remaining conditions, it has said all it had to say. There is nothing it needs to or even tries to communicate after the offender has served his sentence and related release conditions.").
114. An expressive theory of punishment-i.e., where punishment's purpose is to express society's condemnation of the criminal's behavior-might be less tied to offenders' typical experiences, but only insofar as the expression does not depend upon imposition of negative experience. BBM, Happiness and Punishment, supra note 1, at 1077. None of the leading expressive theories-those of Feinberg, von Hirsch, or Kahan-fit this bill. Each is concerned with the offender's experience of punishment to some degree.
115. MF, Bentham on Stilts, supra note 9, at 944.
116. Id. at 946-47.
117. See infra Part II.B.
118. MF, Bentham on Stilts, supra note 9, at 933.
119. The reasonableness of the view that the state continues to speak to offenders even after incarceration is further buttressed by provisions for expunging criminal records. Presumably the state knows that the record continues to communicate something to and about the offender that will cease only when the offender's record has been wiped clean.
120. Other scholars have criticized the role of intent in punishment theory and practice as well.
121. See, e.g., Alice Ristroph, State Intentions and the Law of Punishment, 98 J. CRIM. L. & CRIMINOLOGY 1353 (2008); Thomas K. Landry, "Punishment" and the Eighth Amendment, 57 OHIO ST. L.J. 1607, 1611 (1996) (embracing a theory that includes as punishment "all that a legislature or sentencer expects and intends a prisoner to endure, including the physical setting of confinement and the quality and quantity of life's daily incidents (e.g.,food, clothing, and activities) over which prisoners are denied choice").
122. Cf. Kenneth A. Shepsle, Congress Is a "They," Not an "It": Legislative Intent as Oxymoron, 12 INT'L REV. L. & ECON. 239 (1992).
123. Hugo Adam Bedau, Feinberg's Liberal Theory of Punishment, 5 BUFF. CRIM. L. REV. 103, 112 (2001) (observing that Stanley Benn, Antony Flew, H.L.A. Hart, and John Rawls, among others, require only that some individual within the penal system intend a particular harm).
124. See Gray, supra note 13, at 131-32.
125. Judges might sentence vulnerable prisoners to lower-security facilities (or not); wardens might take steps to segregate prisoners who are known to be violent (or not); and so forth.
126. Of course, one might say that "people intend the likely results of their actions," and thus attribute to the state an intention corresponding to whatever outcome was likely from the aggregated actions of the thousands of individuals involved. See, e.g. United States v. Calderon-Pena, 383 F.3d 254, 271 (5th Cir. 2004) (Smith, J., dissenting). Yet this would reduce the state's "intent" to some combination of proximate causation (addressed above) and an inquiry into what events are reasonably toreseeable (addressed below). At that point, the notion of requiring "intent" loses all of its force.
127. Bedau, supra note 107, at 112 (attributing this view to Benn, Flew, Hart, and Rawls). Again, these retributivists demand only that one individual within the penal system have the necessary intent. Accordingly, their mental state requirement has little bite.
128. MF, Bentham on Stilts, supra note 9, at 970 ("Because the polity did not intend, authorize, or proximately cause these &mellip; post-punishment experiences or effects, they cannot plausibly carry any communicative message &mellip;.").
129. Id. at 960 ("If Kolber's argument here is that retributivists should not disclaim moral responsibility for the reasonably foreseeable bad effects proximately caused by the actions and omissions over which they have control, we agree."). We have already addressed the question of which actions the state has "control" over in the preceding Section on causality. See supra Part II.A.
130. Of course, in criminal law the notion of negligence involves a normative component: a person is criminally negligent when she should be aware of a "substantial and unjustifiable risk." Model Penal Code § 2.02(2)(d) (1962) (emphasis added). Here, we mean no such normative judgment; we use the term "negligence" only to indicate that the actor knew or reasonably should have known of the harm, as a means of differentiating this state of mind from intent.
131. See supra Part II.A.3.
132. MF, Bentham on Stilts, supra note 9, at 929.
133. For a small sampling of the many scholars who hold this position, see, for example,Mark L. Knapp et al., Background and Current Trends in the Study of Interpersonal Communication, in HANDBOOK OF INTERPERSONAL COMMUNICATION 3,14-15
134. JOHN FISKE, INTRODUCTION TO COMMUNICATION STUDIES 1-2 (2d ed. 1990) (outlining assumptions behind a working definition of communication);
135. Mark L. Knapp & John A. Daly eds., 3d ed. 2002) (describing a variety of perspectives on defining communication withinthe discipline and outlining broad areas of agreement, including the difficulty of identifying "intent" as an element of any communicative act);
136. STEVEN W. LITTLEJOHN, THEORIES OF HUMAN COMMUNICATION 6-8 (7th ed. 2002) (describing various working definitions of communication, including the view "that communication should include any behaviors that are meaningful to receivers in any way, whether intended or not");
137. TIM O'SULLIVAN ET AL., KEY CONCEPTS IN COMMUNICATION AND CULTURAL STUDIES 50 (2d ed. 1994) (explaining that many communication scholars "include all the symbolic means by which one person &mellip; affects another," regardless of intentionality);
138. RICHARD WEINER, WEBSTER'S NEW WORLD DICTIONARY OF MEDIA AND COMMUNICATIONS 134 (1996) (defining "communication" as "the transmission or exchange of information, signals, messages, or data by any means");
139. Peter A. Anderson, When One Cannot Not Communicate: A Challenge to Motley's Traditional Communication Postulates, 42 COMM. STUD. 309 (1991) (defining communication to include information or signals received, whether intentionally or unintentionally sent);
140. Thomas R. Nilson, On Defining Communication, 6 SPEECH TEACHER 10, 14-15 (1957) (arguing that an ideal working definition of communication must include unintentionally communicated messages);
141. Glen H. Stamp & Mark L. Knapp, The Construct of Intent in Interpersonal Communication, 76 Q. J. SPEECH 282-99 (1990) (describing "intent" as a construct).
142. See, e.g., O'SULLIVAN ET AL., supra note 117, at 50.
143. See, e.g., Anderson, supra note 117, at 309.
144. See, e.g., Nilson, supra note 117, at 14-15;
145. See, e.g., Nilson, supra note 117, at 14-15; Y. Susan Choi, Heather M. Grey & Nalini Ambady, The Glimpsed World: Unintended Communication and Unintended Perception, in THE NEW UNCONSCIOUS 334;
146. (Ran R. Hassin, James S. Uleman & John A. Bargh eds., 2005); 2 JORGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION (Thomas McCarthy trans., 1987).
147. For instance, a prisoner subjected to sexual assault understands that the state has incarcerated him in a place where sexual assault is rampant and failed to protect him or allow him the means to protect himself. For many such prisoners, the state's message of condemnation by assault is undoubtedly quite clear.
148. MF, Bentham on Stilts, supra note 9, at 933 ("[T]he value of retribution lies in the criminal's ability to understand rationally the state's desire to repudiate his wrongful claim to be above the law.").
149. Id. at 934 ("[R]etributive punishment also performs important coinciding expressive functions.") (emphasis in original).
150. See supra note 113.
151. MF, Bentham on Stilts, supra note 9, at 968 (conceding that "in some cases, however, the effects are reasonably foreseeable").
152. See Michael Massoglia, Incarceration, Health, and Racial Disparities in Health, 42 L. & Soc'Y REV. 275 (2008);
153. Michael Massoglia, Incarceration as Exposure: The Prison, Infectious Disease, and Other Stress-Related Illnesses, 49 J. HEALTH & Soc. BEHAV. 56 (2008);
154. Schnittker & John, supra note 94.
155. See WESTERN supra note 91, at 89-91
156. See WESTERN, supra note 91, at 89-91; Western, Kling & Weiman, supra note 91; PAGER, supra note 91.
157. Leonard M. Lopoo & Bruce Western, Incarceration and the Formation and Stability of Marital Unions, 67 J. MARRIAGE & FAM. 721 (2005).
158. See sources cited supra notes 91, 94, and 126-128.
159. BBM, Happiness and Punishment, supra note 1, at 1067 & n.142 (citing numerous studies of sex offenders as a small sampling of the substantial literature on this point).
160. Of course, as we have explained, we do not believe that it is coherent to describe "the state," a collection of individuals, as having a particular subjective state of mind. But this is MF's difficulty, not ours. If MF disagree with our analysis, they must first establish a workable understanding of what it means for a collection of individuals to share a subjective state of mind.
161. See, e.g., Model Penal Code § 2.02(2)(c) (1962) ("A person acts recklessly &mellip; when he consciously disregards a substantial and unjustifiable risk &mellip; ."). Again, we mean no normative judgment here. We use the term "recklessness" not to indicate that any harm was "substantial and unjustifiable," but to illustrate that the state not only should be aware but is aware of the post-prison harms it is causing. We employ this term, familiar to the criminal law, in order to provide a benchmark for evaluating the state's state of mind. For most crimes an actor's recklessness is sufficient to establish her guilt. Id at § 2.02(3).
162. See sources cited supra notes 91 & 94; see also BBM, Happiness and Punishment, supra note 1, at 1049-53.
163. Scholarly research aside, the problems that former prisoners face upon their release from prison have been widely reported in the popular press. See, e.g., Bob Edwards Weekend, Sirius Radio (Feb. 28, 2009) (featuring author and ex-convict Louis Ferrante describing the lack of job, family, and educational resources available to ex-convicts); Rich Hein, Group Seeks to Help Those Freed from Death Row, CHI. SUN-TIMES, Mar. 2, 1999, at 13 (featuring convict describing having nothing when he was released from prison); Nathan Koppel & Mark Whitehouse, More Ex-Cons on the Streets, Fewer Jobs-States Release More Inmates to Save Money Amid the Worst Employment Climate in Years; One Man Sends Out 500 Resumes, WALL ST. J., Mar. 20, 2010, at A3 ("In most cases &mellip; ex-cons still get no more than a bus ticket and pocket money when they emerge from prison-and are often burdened with parole fees and child-support debts."); Bill Leukhardt, Conference Focuses on Plight of Ex-Convicts, HARTFORD COURANT, Jan. 16, 2003, at B2 (describing inmates who refuse to leave jail because they have no home or job skills); Phil Manzano, Lifestyle Traps Ex-Convicts, OREGONIAN, Jan. 25, 1993, at A01 ("There's no place to get on your feet" for ex-convicts.); Dan Pacheco, A Home for Healing: Dismas Humanizes the Transition for Parolees, DENV. POST, Dec. 28, 1994, at F-01 (Living) (featuring ex-convict describing logistical and emotional difficulties facing recent parolees); Joyce Purnick, 19 Years Late, Freedom Has a Bitter Taste, N.Y. TIMES, Oct. 3, 2005, at Bl (featuring exonerated prisoner describing having lost his job, wife, retirement benefits, parents, and housing, and becoming estranged from bis son, as a result of imprisonment).
164. Rehabilitation has fallen almost completely out of favor as a justification or objective of punishment.
165. See SANFORD H. KADISH, STEPHEN J. SCHULHOFER & CAROL S. STEIKER, CRIMINAL LAW AND ITS PROCESSES 97-101 (8th ed. 2007).
166. See Shawn Bushway, Urban Institute Reentry Roundtable Discussion Paper, Employment Dimensions of Reentry: Understanding the Nexus Between Prisoner Reentry and Work (May 19-20, 2003), available at http://www.caction.org/rrt/ articles/BUSHWAY-EMPLOYMENT%20DIMENSIONS.pdf; Office of Justice Programs (Reentry), U.S. DEP'T OF JUSTICE, http://www.reentry.gov/;
167. National Institute of Corrections, Transition from Prison to Community Initiative, available at http://www.nicic.org/pubs/2002/017520.pdf.
168. MF, Bentham on Stilts, supra note 9, at 961.
169. Id.
170. See generally VICTOR E. SCHWARTZ, COMPARATIVE NEGLIGENCE (3d ed. 1994).
171. So far as we are aware, the only standard criminal doctrine that incorporates a theory of comparative fault (either implicitly or explicitly) is the doctrine of provocation.
172. See, e.g., Maher v. People, 10 Mich. 212 (1862) (allowing a defendant to present evidence that his wife's infidelity reasonably provoked him to kill). Even there, however, provocation only mitigates the crime the defendant has committed; it does not eliminate it. See, e.g., MODEL PENAL CODE § 210.3(l)(b) (1962) (classifying a reasonably provoked murder as manslaughter). Of course, the intervening actions of one individual may break the chain of proximate causation and thus absolve an earlier actor of responsibility. But proximate cause is an issue separate from comparative fault, and one that we have already addressed above. See supra Part II.A.
173. See, e.g., People v. Arzon, 401 N.Y.S.2d 156 (1978) (finding defendant guilty of murder even though victims would not have died were it not for a second, unrelated act of arson).
174. See SCHWARTZ, supra note 139, at ch. 1 (noting the avalanche of torts jurisdictions adopting comparative negligence regimes in the second half of the twentieth century).
175. MF, Bentham on Stilts, supra note 9, at 971 (arguing that moral blame for contingent harms an offender experiences after his state-imposed punishment due to choices of third parties should be placed "on the offender-or, if the harms are unreasonable, on the third parties making those choices").
176. It is worth noting again that MF admit that the state is morally responsible for the reasonably foreseeable effects of its actions. Id at 960. Yet MF blithely ignore this moral responsibility simply because it is shared with the criminal, who could have refrained from committing a crime. This unjustified whitewashing of the state's role is, by itself, a sufficient reason to reject MF's theory.
177. Id at 969 ("Moreover, the harmful effects of prison in post-prison life are also reasonably foreseeable to competent would-be offenders and they are in the best position to avoid those harms, since they can avoid criminality altogether.").