Boston University Law Review 89 (5):1565-1608 (2009)
|Abstract||In tort and contract law, we calculate the harm a defendant caused a plaintiff by examining the plaintiff’s condition after an injury relative to his baseline condition. When we consider the severity of prison sentences, however, we usually ignore offenders’ baseline conditions. We deem inmates as receiving equal punishments when they are incarcerated for the same period of time under the same conditions, even though incarceration does not change their situations equally (unless they started out in identical circumstances). It is the amount by which we change offenders’ circumstances that determines the severity of their sentences. We calculate the severity of some punishments, like fines, comparatively. Fines specify an amount by which to change an offender’s wealth relative to his baseline. We never use fines to equalize the net worth of offenders, but we do use prison to equalize the liberties of prison inmates. When we recognize the comparative nature of punishment, we see that, by putting two equally blameworthy offenders in prison for equal durations, the offender with the better baseline condition is likely punished more severely than the offender with the worse baseline condition. We must attend to the differences in their baselines or else we will fail to justify some of the harsh treatment that we knowingly impose. If we insist on giving both of these offenders equal prison terms, we cannot justify doing so on the grounds of proportional punishment.|
|Keywords||punishment retributivism consequentialism punishment theory baselines proportionality|
|Categories||categorize this paper)|
|Through your library||Configure|
Similar books and articles
Jeremy Bentham (2009). The Rationale of Punishment. Prometheus Books.
J. Angelo Corlett (2003). Making More Sense of Retributivism: Desert as Responsibility and Proportionality. Philosophy 78 (2):279-287.
Christopher Bennett (2008). The Apology Ritual: A Philosophical Theory of Punishment. Cambridge University Press.
J. Angelo Corlett (2001). Making Sense of Retributivism. Philosophy 76 (1):77-110.
David Wood (2010). Punishment: Consequentialism. Philosophy Compass 5 (6):455-469.
Shawn J. Bayern, The Significance of Private Burdens and Lost Benefits for a Fair-Play Analysis of Punishment.
Daniel Z. Korman (2003). The Failure of Trust-Based Retributivism. Law and Philosophy 22 (6):561-575.
Adam Kolber (2012). Unintentional Punishment. Legal Theory 18 (1):1-29.
Adam J. Kolber (2009). The Subjective Experience of Punishment. Columbia Law Review 109:182.
Added to index2010-07-09
Total downloads4 ( #188,845 of 722,826 )
Recent downloads (6 months)0
How can I increase my downloads?