Offenders vary in their sensitivity to punishment. In recent years, this observation has formed the basis of a critique of retributivism. According to the subjectivist critique, retributivists must choose between two bad options. If they ignore variation in how offenders experience punishment and are worsened by it, they will fail to justify punishment practices, such as incarceration, that inevitably inflict experiential harms and worsen offenders to varying degrees. Even if these harms do not formally constitute punishment, they reduce desert debt (...) and must be considered to avoid overpunishment. If, however, retributivists properly consider experiential harms and other worsenings, they are led to counterintuitive results—for example, that the wealthy should generally spend less time in prison or have better conditions than the poor when they commit equally serious crimes. Hence, the subjectivist critique reveals that retributivism cannot justify common punishment practices, such as incarceration, without also leading to conclusions that most will find unappealing. (shrink)

The Supreme Court has held that pretrial detainees are presumed innocent and that their detention does not constitute punishment. If convicted, however, detainees usually receive credit at sentencing for the time they spent in detention. We reduce their punishment by time spent unpunished. -/- Crediting time served conflicts with the commonly held view that punishment should be proportional to blame. Offenders who deserve to be punished by a year in prison but spend a year in pretrial detention may be released (...) immediately at sentencing and technically receive no punishment at all. -/- One way to solve the mystery of credit for time served is to recognize that people don’t care about proportional “punishment” in the narrow way the Supreme Court and many theorists use the term. Rather, they seek to dispense proportional “harsh treatment.” Even though pretrial detention is technically not punishment, it is harsh treatment inflicted by the state, and most believe offenders deserve credit for it. -/- Shifting focus to proportional harsh treatment, however, solves one problem at the expense of several others. For if state-inflicted harsh treatment before conviction counts for purposes of assessing proportionality, then surely state-inflicted harsh treatment afterward should count too. While we could try to salvage proportionality by better measuring harsh treatment, I explain the sometimes absurd consequences of doing so. -/- Even though retributivist notions of proportionality are central to sentencing systems around the world and are widely thought to undergird core notions of criminal justice, both proportional punishment and proportional harsh treatment have profoundly counterintuitive implications. When the weaknesses in retributivist proportionality are revealed, consequentialist punishment theories look correspondingly more appealing. (shrink)

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. (shrink)

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. (shrink)