In my previous post, I suggested that our prevailing theories of punishment require us to take account of variations in prisoners’ experiences of punishment. Admittedly, we have dueling intuitions about doing so. I think most people are sympathetic to the genuine claustrophobe who has an unusually difficult time in prison (and claustrophobic symptoms are likely to fall along a wide spectrum). On the other hand, most people are unsympathetic to the spoiled rich person who is used to fine food and accommodations and therefore has an unusually difficult time in prison.
In my article, I do my best to explain this battle of intuitions. For example, perhaps a person like Paris Hilton is actually more culpable than someone else who commits the same crime. She had better alternatives to criminal behavior. She could have hired a chauffeur to drive her around. If so, there’s no puzzle in explaining why people think she should spend at least as much time in prison as an ordinary person who commits the same crime. (Put aside the possibility that Hilton actually had claustrophobia, which complicates the analysis.)
Assuming that our theories do indeed tell us to take account of variation in punishment experiences, the critical question is: what, if anything, follows from this? As some people noted in the comments, it could just mean that something is wrong with our theories. For example, a pure incapacitationist about punishment has no obligation to consider variations in experience.
Alternatively, we could decide it’s just too costly or difficult to administer calibrated punishments. For example, it would be difficult to predict in advance how a particular prisoner will experience punishment; to measure a prisoner’s subjective experiences while punishment is being imposed; to determine when a prisoner contrives to appear more distressed by punishment or the prospect of punishment than, in fact, he is; and to reach consensus over the kinds of subjective experiences that matter for assessing punishment.
We might, however, be able to craft some general policies that better take account of subjective experience. Also, while it might be too difficult to individually calibrate punishment, that may not always be the case. Here are some reasons why we shouldn’t be too quick to give up on the possibility of someday making individual calibrations:
First, outside the criminal context, we often make difficult assessments of subjective experience in the courtroom. In tort law, for example, we attempt to value subjective feelings of physical pain and emotional distress. Rather than using an objective pricing mechanism (e.g., $5,000 for a broken arm and $10,000 for a broken leg), we attempt to determine how much pain or distress a particular defendant has experienced and will experience as a result of the plaintiff’s tortious conduct. We do so, even though plaintiffs have incentives to portray themselves as suffering more than they actually do. Experts routinely testify about plaintiffs’ physical and emotional damages and help jurors weed out malingerers. We certainly disagree about how we ought to aggregate the value of various kinds of unpleasant mental states (e.g., physical pain, mental anguish, upsetting memories) and distill them all into a single dimension represented in dollars, but we nevertheless make such valuations all the time.
Second, we already spend considerable, if insufficient funds, on psychological evaluations of individual offenders. And while administrability concerns may preclude us from calibrating all punishments, there may be classes of crimes or offenders where individualized calibration is appropriate. For example, psychiatrists have made progress in diagnosing and assessing the severity of claustrophobia and in detecting those who malinger the condition. If so, perhaps subclinical levels of claustrophobia could be taken into consideration as well.
Third, emerging neuroscience technologies hold out the promise that our assessments of individuals’ subjective experiences may become more accurate. Using functional magnetic resonance imaging (“fMRI”), researchers can observe a subject’s brain while the subject experiences emotions like happiness, sadness, anger, fear, and disgust and attempt to find the neural correlates of such emotions. A number of studies purport to have found brain regions that are more active when subjects experience physical pain, and I have argued elsewhere that, in the not-too-distant future, neuroimaging may provide helpful evidence in tort cases in detecting malingered pain. Neuroscientists have also noted structural differences in the brains of people who have experienced chronic depression and in the brains of those under long-term stress, which could conceivably provide more objective evidence about a person's experiences over long periods of time.
By all means, current technology leaves much to be desired and intersubjective comparisons of utility are notoriously difficult to make. We are likely a long way from having accurate, practical means of assessing the complicated, evolving sets of experiences associated with punishment. It is better, though, to recognize the practical, ever-changing limitations on our ability to measure subjective experiences as contingent features of early twenty-first century living rather than to construct a purely objective view of punishment that builds these limitations into our theory of what punishment is really all about.