David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Columbia Law Review 109:182 (2009)
Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences. I make two central claims: First, a successful justification of punishment must take account of offenders' subjective experiences when assessing punishment severity. Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner. Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress. Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now. I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness. I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.
|Keywords||Punishment Subjective Experience Retributivism Consequentialism Neuroethics|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
Nicole A. Vincent (2010). On the Relevance of Neuroscience to Criminal Responsibility. Criminal Law and Philosophy 4 (1):77-98.
Greg Roebuck & David Wood (2011). A Retributive Argument Against Punishment. Criminal Law and Philosophy 5 (1):73-86.
Larry Alexander (2013). You Got What You Deserved. Criminal Law and Philosophy 7 (2):309-319.
Stephen P. Garvey (2013). Was Ellen Wronged? Criminal Law and Philosophy 7 (2):185-216.
Douglas Husak (2013). The Philosophy of Criminal Law: Extending the Debates. [REVIEW] Criminal Law and Philosophy 7 (2):351-365.
Similar books and articles
Kevin Magill (1998). The Idea of a Justification for Punishment. Critical Review of International Social and Political Philosophy 1 (1):86-101.
Anthony Ellis (2003). A Deterrence Theory of Punishment. Philosophical Quarterly 53 (212):337–351.
Shawn J. Bayern, The Significance of Private Burdens and Lost Benefits for a Fair-Play Analysis of Punishment.
Anthony Ellis (2005). Punishment as Deterrence: Reply to Sprague. Philosophical Quarterly 55 (218):98 - 101.
By Anthony Ellis (2005). Punishment as Deterrence: Reply to Sprague. Philosophical Quarterly 55 (218):98–101.
Jeremy Bentham (2009). The Rationale of Punishment. Prometheus Books.
David Wood (2010). Punishment: Consequentialism. Philosophy Compass 5 (6):455-469.
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 Comparative Nature of Punishment. Boston University Law Review 89 (5):1565-1608.
Added to index2009-11-05
Total downloads40 ( #103,189 of 1,907,000 )
Recent downloads (6 months)1 ( #468,221 of 1,907,000 )
How can I increase my downloads?