When we punish people in the criminal justice system, we cause them to suffer. In other contexts, causing such suffering would be grossly immoral. Indeed, locking someone up against his will would itself be a crime if we lacked a legal justification for doing so. Hence, punishment theorists seek to determine when (if ever) punishment is morally permissible.
Criminal punishment presents a particularly interesting object of study for the Value of Suffering Project because many scholars believe that the suffering associated with punishment is intrinsically valuable. They believe that even if incarceration does not lead to penance or reformation or even deterrence, it is nevertheless valuable. But even if punishment is not intrinsically valuable in this sense, it’s difficult to deny that the suffering of punishment can be instrumentally valuable as a means of discouraging crime, incapacitating dangerous people, and rehabilitating criminals. So punishment is also an interesting phenomenon in that most agree that it has value, even if we disagree as to whether the value is instrumental on non-instrumental.
Nevertheless, the experience of punishment, I will argue in this post, receives less attention than our best theories of punishment would seem to require. Let me begin with an example:
Suppose that Sensitive and Insensitive commit the same crime under the same circumstances. They are both convicted and sentenced to spend four years in identical prison facilities. In fact, their lives are alike in all pertinent respects, except that Sensitive is tormented by prison life and lives in a constant state of fear and distress, while Insensitive, living under the same conditions, finds prison life merely difficult and unpleasant. Though Sensitive and Insensitive have sentences that are identical in name—four years of incarceration—and the circumstances surrounding their punishments appear identical to a casual observer, their punishment experiences are quite different in severity.
Many theorists provide a retributive justification for punishment, claiming that offenders deserve to suffer for their crimes. They typically also believe that an offender’s suffering should be proportional to the seriousness of his offense. Hence, murderers should be punished more than thieves, who should be punished more than jaywalkers. Sensitive and Insensitive, however, have committed crimes of equal seriousness, and, on this view, should suffer the same amount. Thus, most retributivists are committed to the perhaps surprising outcome that we ought to take account of the differences in the punishment experiences of people like Sensitive and Insensitive in order to punish them equally.
Many consequentialist punishment theorists believe that we should punish in order to deter crime, incapacitate offenders, and rehabilitate criminals. One reason punishment experience matters to consequentialists is that anticipated punishment experience affects how much we deter people. People who are very sensitive to the risk of suffering in prison are likely to be optimally deterred at a different level than people who are very insensitive to the risk of suffering in prison. So setting optimal deterrence levels requires us to consider anticipated suffering. Moreover, in order to be sure that the benefits of some instance of punishment actually exceed its costs, we need some measure of the actual costs of punishment—including the suffering associated with it. Therefore, consequentialists are also committed to the view that we ought to take punishment experience into account.
Hence, on the most widely accepted views of punishment, the experience of punishment matters. Nevertheless, courts rarely take punishment experience into account, at least not explicitly in a manner open to review. Indeed, many jurisdictions use sentencing guidelines that seem to discourage consideration of such issues.
In this brief blog post, I only give the flavor of the argument in defense of considering punishment experience. Namely, if we fail to take account of offenders’ negative experiences, we likely fail to justify the full magnitude of the punishments we impose. No doubt, it is very difficult to predict and measure experiences. But given the importance of experiences to our leading theories of punishment, our failure to more closely consider experiences may simply be a function of cost and administrative difficulties. Such difficulties may decrease as we get better at measuring suffering and other emotional states.
The author is a law professor at Brooklyn Law School who writes about criminal law, bioethics, and law and neuroscience. He also runs the Neuroethics & Law Blog. This post is adapted from Adam J. Kolber, The Subjective Experience of Punishment, Columbia Law Review, Vol. 109, p. 182, 2009. Professor Kolber further discusses the potential for future technologies to improve our assessments of human suffering in Adam J. Kolber, The Experiential Future of the Law, Emory Law Journal, Vol.60, p.585, 2011.