Beyond experience: Getting retributive justice right

California Law Review

Volumn 99, Issue 2, 2011, Pages 605-628

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

^a FLORIDA STATE UNIVERSITY   (United States)

^b SAINT LOUIS UNIVERSITY   (United States)

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

Author keywords

[No Author keywords available]

Indexed keywords

EID: 80051537018     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (18)

1. John Bronsteen, Christopher Buccafusco & Jonathan Masur ("BBM"), Happiness and Punishment, 76 U. CHI. L. REV. 1037 (2009) [hereinafter HP].
2. For those joining the conversation, BBM first wrote HP; Dan Markel and Chad Flanders ("MF") then wrote Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, 98 CALIF. L. REV. 907 (2010) [hereinafter BOS]. Around the same time, David Gray wrote Punishment as Suffering
3. VAND. L. REV. 1619 (2010) [hereinafter PAS]. BBM then responded to MF in
4. Retribution and the Experience of Punishment, 98 CALIF. L. REV. 1463 (2010) [hereinafter REP]. MF invited Gray to join in for those portions of this reply that relate to shared interests.
5. While not directed at BBM, Adam Kolber develops this point. See generally Adam J. Kolber, The Subjective Experience of Punishment, 109 COLUM. L. REV. 182 (2009).
6. Cf. BBM, Welfare as Happiness, 98 GEO. L. J. 1583, 1628-33 (2010) (describing wellbeing analysis as similar to but distinct from traditional cost-benefit analysis).
7. See generally Dan Markel, Executing Retributivism: Panetti and the Future of the Eighth Amendment, 103 NW. U. L. REV. 1163 (2009). Needless to say, the capacity to understand condemnation and the capacity to experience the sensation of pain are different.
8. See generally Martha C. Nussbaum, Who Is the Happy Warrior? Philosophy Poses Questions to Psychology, 37 J. LEGAL STUD. S81, S99-S100 (2008).
9. See Daniel Kahneman, Maps of Bounded Rationality: A Perspective on Intuitive Judgment and Choice, Nobel Prize Lecture (Dec. 8, 2002), available at http://nobelprize.org/nobel-prizes/economics/laureates/2002/kahnemann-lecture. pdf (discussing findings of pain from colonoscopy procedures).
10. See LEO ZAIBERT, PUNISHMENT AND RETRIBUTION 27-28 (2006) (analyzing "definitional stops" in punishment theory). We simply think that BBM's conflation of crimes, torts, and punishment signals an abuse of language akin, to use Zaibert's example, to saying "I forgive you, though I believe you have done nothing wrong." Id. at 28.
11. See generally Chad Flanders, Retribution and Reform, 70 MD. L. REV. 87 (2010);
12. David Gray & Jonathan Huber, Retributivism for Progressives: A Response to Professor Flanders, 70 MD. L. REV. 141 (2010);
13. Dan Markel, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 VAND. L. REV. 2157 (2001) (criticizing over-reliance on incarceration).
14. Kenneth W. Simons, Statistical Knowledge Deconstructed 23-25 (Bos. Univ. Sch. of Law, Working Paper No. 10-26, 2010), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=1673266.
15. see also Joel Feinberg, The Expressive Function of Punishment, 49 MONIST 397, 402 (1965) ("[C]ertain forms of hard treatment have become the conventional symbols of public reprobation. This is neither more nor less paradoxical than to say that certain words have become conventional vehicles in our language for the expression of certain attitudes, or that champagne is the alcoholic beverage traditionally used in celebration of great events, or that black is the color of mourning."). Of course, as Anthony Skillen remarked, Feinberg likely overstates the claim that hard treatment is merely a "signal" of reprobation much like the wearing of black is a signal of mourning. "[I]t is pretty clear that losing money, years of liberty, or parts of one's body is hardly neutral in that way."
16. Anthony Skillen, How to Say Things With Walls, 35 PHILOSOPHY 509, 517 (1980). Rather, per Skillen, our "[punitive] practices embody punitive hostility, they do not merely 'symbolize' it." Id. If Skillen is correct, then it surely reinforces our view that the hard treatment aspect of state punishment is necessary in order for punishment to communicate reprobation adequately, though of course the "hardness" of the treatment can be calibrated using objective metrics capable of ex ante determination, such as months in prison or fines based on percentages of net wealth.
17. See generally Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. REV. 1503, 1508 (2000) (explaining the distinction).
18. See, e.g., Philip Pettit, The Reality of Group Agents, in PHILOSOPHY OF THE SOCIAL SCIENCES: PHILOSOPHICAL THEORY AND SCIENTIFIC PRACTICE 67 (C. Mantzavinos ed., 2009), available at http://www.princeton. edu/~ppettit/papers/ 2009/Realiry%20of%20Group%20Agents.pdf.