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[Adam Kolber, guest-blogging, February 15, 2008 at 9:07am] Trackbacks
Paris Hilton and Punishment Experience:

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.

Brian Mac:
Based on the title, I was hoping for a kinky S+M post...You've let me down, Adam.
2.15.2008 9:47am
Aultimer:
There seems to be a more difficult question in considering subjective experience - the baseline environment that a convict is leaving is a huge factor. The amount of punishment experienced by an addicted homeless person going to jail and rehab is likely less than Paris going to a minimum security facility. Heck, in my social psychology days, we dealt with a notable prison population there by "choice" - some choosing from bad circumstances outside, some choosing because of re-entry difficulty.
2.15.2008 10:08am
John Burgess (mail) (www):
What you describe seems more apt for 22nd C. jurisprudence, not 21st C.

Perhaps as part of the universal police state, we can, through rigorous lab work, determine baseline thresholds for each individual--claustrophobia, social/antisocial biases, racial biases, religious conviction, food preferences, etc. From these we can then determine the appropriate kind of incarceration to meet society's goal for that incarceration: punishment, exclusion, prevention.

But this approach draws near the logical fallacy that 'if we only had enough data, we'd know everything'. There will always be things that, given perfect data, will not produce reproductable results. At a very basic level, quantum randomness will prevent us from perfect predictive powers. At some point, we have to acknowledge that classes of cases rather than individual cases will be the way in which we approach most problems.

Society and governments, no matter how well intended, will not accept (and cannot afford) that prisons undertake individualized incarceration regimes. Perhaps in some SF utopia, prisons will be replaced by mental treatment facilities. I'm not looking forward to that day.
2.15.2008 10:19am
David Chesler (mail) (www):
Prison is worse for Paris Hilton than for some bum who is stealing a loaf of bread to feed his children. The same privilege that let her avoid the hard knocks that would have toughened her also gives her more reason to be upstanding. And we expect the privileged to be more upstanding.

I've got a lot more to lose from the most minor misdemeanor (eg license to carry, security clearance, employment) than someone who is already in a worse position has from a more serious conviction. So I have to keep my nose cleaner.

Do you address that too much inequality before the law breeds disrespect for the law?

Personally I'm cool with younger offenders (especially but not limited to juveniles, though these days "juvenile" is cutting off younger and younger) going to easier places; those less likely to be violent going to better places; isolation for celebrities. And it was well pointed out if you read past the headlines that Paris wasn't treated much better than lots of comparable offenders, given the overcrowding. (And it might be enough to scare someone straight.) But I don't want to see much evaluation of "this person is more sensitive so he can get away with more for less punishment."
2.15.2008 10:32am
sef:
Adam:

To be blunt, when I read your law review article on this subject I was horrified and sickened. The idea that two similarly situated offenders (who say committed vehicular homicide), save for the fact one was from a poor family who lived in squalor and the other from a rich family who "lived large," shouldn't be receive the same punishment is stunning. The idea that one's sentence should depend on one's income level &the level of comfort one has grown accustomed to is is morally repugnant. While we already consider certain mitigatory factors of an offense as it relates to moral blameworthines, your suggestion moves beyond to a place where we should not go -- save for exceptional circumstances criminal law deals with objective experiences, not the subjective.

BoP &DoCs around the country already consider the factors you list in determining placement and programming. Corrections' officials, for all the looking down the nose e in the legal profession do at them, are experts in the area of of penology. A sentencing judge is not.

Let's use a different example, John &Joe went to the same high school. Indeed they were best friends. Joe becomes GI Joe, goes into the Marines, sees combat and comes home. John goes to an elite university, say Princeton. John throw Joe a party. Both get drunk and both sexually assault the same girl who is too drunk to consent. Your argument seems to suggest that all things else being equal John should receive a lesser sentence than Joe because Joe has been psychologically hardened by the Marines &combat. Such a result is not just illogical it is immoral.

Couldn't we also conclude that other goals of sentencing &governance aren't served by coddling rich offenders? Aren't we in reality creating the appearance of inequality that many social theorist believe leads to an increase in crime rates &other social unrest?

On a more practical level, I have represented hundreds, more likely thousands, of people at sentencing. The reality is our system can't handle the type of psychological evaluations you want. The cost of the evaluations alone would prevent anything more than a quick summary evaluation by the courts, save for the well off defendant. In a system where the cost of the defense is picked up by the government for 2/3rds -- and as much as 85% in some locations -- of defendants such a system of "subjective" sentencing is fiscally unfeasible.

I could go on at length but I leave it at immoral, unjust &impractical.
2.15.2008 10:40am
Pyrrhus (mail) (www):
"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 may claim to do so, but is the underlying intuition justifying compensation of the tortiously maimed based on desire to recompense "pain", or to recompense lost opportunity? I would argue the latter. Simply equating an emotion with a cost (or benefit) is problematic.
2.15.2008 10:46am
George Weiss (mail):
1. we also already use parole board and recommendations from correctional officials to asses the less than objective measure of how much a offender has 'rehabilitated' himself for the purposes of parole.

perhaps if its too hard to judge someones sensitivity to imprisonment before the time is served..it could be dealt with using indeterminate sentencing.

2. of course..the moral arguments against the sensitivity to incarceration calibration are pretty strong...

but..if like many criminologists..you believe that the purpse of punishment is deterrence and not retribution..than what does it matter if sentences for the same people who committed the exact same crime are unequal..if they are equally deterrent..isnt that all that matters?
2.15.2008 11:08am
Mr. Liberal:

Simply equating an emotion with a cost (or benefit) is problematic.


Why?

If someone experiences extreme emotional anguish, how is this not a cost? Wouldn't most people pay money to avoid such an experience?
2.15.2008 11:20am
PatHMV (mail) (www):
I think this idea works much better in the area of monetary penalties rather than incarceration penalties. As I recall, at least one nothern European country imposes speeding fines as a percentage of income or wealth rather than as a set dollar amount, because a $500 fine to a multi-millionaire has about zero deterrent effect, while a $500 fine to a single mother struggling to raise 2 children may be far too harsh, and much more than is necessary to deter such infractions.

Regardless of technical improvements, I think the psychological impact of incarceration on any given individual will remain so subjective, so intuitively unknowable to the public at large that your suggestion won't work in the criminal justice realm.

Justice must not only be done but, to keep faith with society, justice must be seen to be done. On a whole, the system relies heavily on a general perception that the system works, that both the rich and the poor will receive equal treatment. I don't think the poor will ever be convinced that the psychological impact that prison would have on a person who has lived a more privileged life is sufficient to justify a more lenient sentence.
2.15.2008 11:22am
PatHMV (mail) (www):
George Weiss... the factor to consider is the impact on deterrence of the poorer folks caused by the lesser sentences imposed on the rich.

One, there's a psychological mechanism which will cause the poor, I think, to be less deterred by the 10 year sentence they're likely to get precisely because they know that a rich person would get only a 1 year sentence for the same thing.

Two, crimes by celebrities and the rich often receive more publicity than crimes by the poor. It's not news when Jane Doe shoplifts, but it's big news when Winona Ryder does it. Thus, the general perception of what sentences are handed out is based, in part, on the sentences given to the rich and celebrated. If they receive lesser sentences, there will be a general perception that EVERYBODY will get that level of sentence.
2.15.2008 11:29am
Ion:
I think your are on to something, however, I'm not sure that personally tailored jail-sentences should be the goal. What we should be asking is why the threat of jailtime seems to be so ineffective in preventing such a large swath of our population from engaging in criminal activities. What would be a better psychological (yet humane) threat to those members of our society that engage in gang behavior, for whom prison is almost like a right of passage. What is a better psychological (yet human) threat to those members of society that engage in small-time white collar crime, such as pirating music.
For the latter, I would propose that a much better threat may be something more like a mix between the longevity of prison and the societal benefits of merely imposing a financial penalty. Perhaps, if you doing X (say, stealing music on-line) you will must pay Y% more taxes per year for the next 5-10 years, depending on good behavior. Likely, if the percentage were high enough, the persons who the law is aimed at (mostly college age males) would change their behavior in response to such a threat.
2.15.2008 11:30am
Mr. Liberal:

On a whole, the system relies heavily on a general perception that the system works, that both the rich and the poor will receive equal treatment.


Anyone who actually believes that the rich and the poor are similarly situated with respect to the justice system is an idiot, and their point of view can thus be discarded.

A good defense lawyer makes a difference for what kind of deal a client gets from the DA or what kind of defense they are able to bring. Of course, there is no exactly easy way to go about selecting lawyers. Public defenders are not bad. But, with their huge caseloads, they do not have enough time or resources to investigate the defenses in every case as thoroughly as they would like.

Not only that, obviously the opportunity cost of committing crime is much lower for the poor than the rich. The rich have both less to gain by economic crimes and more to lose.

The law "forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread."

I think any intelligent observer already knows that our system does provide equal treatment to people. Nonetheless, our system does work. It does not really rely heavily on the false perception that it is fair.

I am not arguing that fairness is not desirable. I am arguing that the appearance of fairness is not that necessary.

The only people who think that our justice system is fair are those who are misinformed and ignorant.
2.15.2008 11:41am
JustinP (mail):
Your tort law analogy convinced me that subjective assessments are absolutely too costly and difficult to administer.

Disputed assessments of "emotional distress" in civil cases are erratic, irrational, and incredibly costly. This system is troubling enough when imposing monetary penalties: it's frankly horrifying to contemplate a similar system in the context of criminal punishment.
2.15.2008 11:43am
PersonFromPorlock:
I recall a science fiction novel where it was mentioned, very much in passing, that the punishment for all crimes on a particular planet was public whipping, with the punishees' physical and emotional pain being monitored so that every one received exactly the same amount of distress for the same crime.

Can't remember the name of the novel but... it's been done. Come to think of it, Gilbert and Sullivan have a pretty good claim on the idea, too.
2.15.2008 11:49am
pete (mail) (www):

I don't think the poor will ever be convinced that the psychological impact that prison would have on a person who has lived a more privileged life is sufficient to justify a more lenient sentence.


I doubt that you will convince us middle class folk either. The whole point about prison is that it is supposed to be an unpleasant experience and that is enough to convince the majority of the population to not commit serious crimes. Paris Hilton if anything needs a higher sentence because she has no respect for the law and thinks she can get away with crimes with no punishment because of her status.


if like many criminologists..you believe that the purpse of punishment is deterrence and not retribution


But there are multiple reasons for punishment and retribution needs to be part of the equation. Or else crime victims start losing faith in the system and will be more likely to dole out justice themselves.


As I recall, at least one nothern European country imposes speeding fines as a percentage of income or wealth rather than as a set dollar amount, because a $500 fine to a multi-millionaire has about zero deterrent effect, while a $500 fine to a single mother struggling to raise 2 children may be far too harsh, and much more than is necessary to deter such infractions.


Norway does this. A multimillionaire was given the equivalent of a $30,000 fine for drunk driving. Considering he was driving his Rolls Royce while drunk, I doubt the $30,000 is even that much of a deterent.
2.15.2008 11:54am
witheld (mail):
A good defense lawyer makes a difference for what kind of deal a client gets from the DA or what kind of defense they are able to bring. Of course, there is no exactly easy way to go about selecting lawyers. Public defenders are not bad. But, with their huge caseloads, they do not have enough time or resources to investigate the defenses in every case as thoroughly as they would like.

The idea that by definition PDs aren't good defense lawyers is absurd. I am a career PD. I win more trials than I lose. I know every prosecutor. I receive better offers than private attorneys for the same offense. My clients know that &I know that &more importantly the prosecutors know that.

Perhaps because I practice in a progressive community, my pay as a PD is competitive with that of most crim def practitioners, although clearly not that of big law firm.

What I find most hilarious, however, is when private attorneys I know, either socially or otherwise, come up (after taking a sizable fee from a client I represented) get the exact same -- or worse -- offer. The client -- or more likely their family -- didn't want to get saddled with the social stigma of the public defender label. The case ends up at trial, and ....

It does not really rely heavily on the false perception that it is fair.

Every institutional player I know in the system actually strives to obtain this result, as does our federal due process &equal protection guarantees.
The only people who think that our justice system is fair are those who are misinformed and ignorant.

This is just plain stupid and undeserving of comment. At times arbitrary yes. At times capricious yes. At times freakish yes. As a whole unfair in the vast majority of jurisdictions, no.
2.15.2008 11:56am
George Weiss (mail):
PatHMV

i like your points and it got me thinking about other psychological perceptions.

as to your first point:
is it really true that the poor will think it so unfair the rich get lesser sentences?

isn't it true that the poor and even the middle class often have irrational beliefs that one day they will be rich? (why many people who are poor and cant afford lottery tickets play the lottery)

isn't it also true that people who are poor sometime believe the nonsense that the rich are better than them..and often treat them better than they would a poor person..just becuase?

in reality right now in America..you would think that the poor would generally vote democratic and the rich generally republican..but it turns out this isn't true....very poor rural areas are often republican whereas very rich urban areas go democratic...obviously..this is due to many factors....but this may be one of theme.

as to your second point..i don't think real criminals (most crimes are committed by the same % of the pop) get their info from tv on sentencing...in reality.very few people could tell you how much time if any Winona Ryder or Martha Stweart got. but drug dealers who have friends or car theiefs who've spent time know basically what a reasonable sentence for activity X is with Y criminal history.
2.15.2008 11:57am
PLR:
Your tort law analogy convinced me that subjective assessments are absolutely too costly and difficult to administer.

You're easy.
Disputed assessments of "emotional distress" in civil cases are erratic, irrational, and incredibly costly.

Costly to the loser maybe, but as far as the system's concerned isn't it just a battle of witnesses in front of a fact finder?
2.15.2008 12:02pm
Brian Mac:
"Anyone who actually believes that the rich and the poor are similarly situated with respect to the justice system is an idiot, and their point of view can thus be discarded."

Way to win over the other side!

"A good defense lawyer makes a difference for what kind of deal a client gets from the DA or what kind of defense they are able to bring."

And this idiot thought that a prosecutor's resources were typically a function of the wealth spent by the defendant. But I guess you've been too busy writing John Edwards' stump speeches to look into this...
2.15.2008 12:07pm
CheckEnclosed (mail):
I've got an idea -- let's assume that people who suffer more in from criminal punishment (including, but not limited to, prision) are more strongly deterred from committing further crimes (with a risk of capture and incarceration) than those who suffer less.

We can start with a default assumption that everyone suffers a lot, and so offer leniency for a "first offense". Then, the people who show that they suffered so little(relatively) from criminal punishment by committing enough additional crimes that they get caught and convicted can be sentenced to relatively harsher punishment as "repeat offenders". Maybe we can have a scheme that recogninzes those who suffer relatively less from punishment &who are serial felons. We could call it ... "5 strikes &you're out" ... or something.
2.15.2008 12:29pm
Duffy Pratt (mail):
This reminds me of one day of sentencing when I was a clerk.

The first defendant was the CEO of a savings and loan. He had personally embezzled something in a very nice neighborhood (upwards of $50,000,000). In all, his crimes were responsible for a loss to the S&L of upwards of $200 billion. There were many letters from pillars of the community begging for probation because of the man's financial ruin and disgrace, arguing that he had suffered enough.

The second defendant was a homeless woman in her mid-twenties. She was convicted of bank robbery. She went into a few banks and handed the teller a note saying that a man outside was threatening her with a gun and would kill her if she didn't bring out money. In her series of crimes, she took something just under $8000. Before she started this spree, she had just been released from a hospital for injuries she had sustained when a gang of guys raped her, stabbed and slashed her several times, and then threw her off a bridge (a low bridge in Minneapolis) leaving her for dead. She nearly died in the incident, and lost some fingers from frostbite. In her early history, she was a runaway from an abusive stepdad, who had routinely beaten and raped her. The reason she turned to bank robberies is because she became addicted to some painkillers during her recovery from the gang rape, beating, and slashing (and she could no longer make money as a prostitute because of the horrible disfiguration to her face.)

The S&L CEO got 20 months, most of it served in a halfway house. The woman got 10 years in a maximum security prison (the notes she handed the tellers made her crime an armed robbery, even though the gun was a pure fiction, and even in that fiction the gun never entered the bank. Until now, I always thought this result was a little unjust. Now, I understand that it was, but in the wrong way. Now I know that the CEO got off easy, and the woman should have served more time.
2.15.2008 12:35pm
A.C.:
I would add, segregating the first offenders (at least the non-violent ones) from the harder cases. We don't want the prison experience itself to make them harder and more difficult to deter. Loss of liberty, extreme boredom, and zero control of daily routine should be bad enough for many people. Gang rape is too much.
2.15.2008 12:39pm
TruePath (mail) (www):
As I argued in the last post this poses serious problems to deterence. Deterence isn't proportional merely to the badness of the punishment but to it's emotional salience as well. Given that it's easy to imagine 5 years in jail but would be hard to imagine 'the equivalent amount of suffering as that guy would have being sent to jail for five years.'

The problem is the experts and complex interrogations will make the outcome of the trial opaque to anyone who isn't involved and the real point of a trial is to say, 'don't act like him or the same thing will happen to you.'

Also I seriously worry that this extra complexity would be used as a cover for punishing those who we dislike/are different more than those who inspire sympathy in us (e.g. minorities etc..). Even if it turns out to be true that blacks in the ghetto tend to mind prison less than suburban whites (say because it carries less social stigma) the racial tension it would create to act on this would be much to great. Besides, it would create biases in terms of voting with ex-convicts.
2.15.2008 12:43pm
Thoughtful (mail):
I'm a radiologist, albeit not one who regularly works with fMRI. I have read that this study can distinguish subjective brain states--happiness, fear, etc.--but remain highly sceptical. I have yet to see the double-blind study where actors feign such emotions while being "imaged" and see if the interpreting physicians can distinguish faux from real emotional states.

I recall a famous "study" a few decades back where a psychiatrist hired an actor to give a talk to a psychiatric conference; the actor was trained in certain psychiatric terminology and gave what in reality was a nonsense presentation. Afterwards, the audience graded his talk as "stunning", "brilliant", etc. No one indicated they thought him a fake.

I've worked with other radiologists for 20 years. I have no reason to believe they are smarter than psychiatrists.
2.15.2008 12:49pm
Thoughtful (mail):
Duffy Pratt: Is your last sentence correct as regards your intentions? (Do you want to say the CEO got off easy?)
2.15.2008 12:51pm
Bugz (mail):
I guess I must be old fashioned, but somehow, shouldn't punishment involve some sort of 'punishment'?

If Paris Hilton (or whoever) is going to be particularly traumatized by going to jail, then it is incumbent upon Paris Hilton (or whoever) to to do everything in his/her power to avoid being put into that postion. If he/she is too stupid to take even minimal precautions for their own well being, then the reality of an actual incarceration may be what he/she needs provide the necessary deterrent against future misconduct.

Is the concept of people taking personal responsibilty for their own actions entirely dead?
2.15.2008 1:02pm
Kenvee:
If we're judging a person's prison sentence based on how much they suffer, doesn't that eliminate all the current incentives on prisoners to do better and work at rehabilitation while in prison? Currently prisoners are encouraged to improve their status through good behavior so they can get better prison jobs, take classes, participate in rehab, etc. Under the proposed model, wouldn't they be encouraged to lay miserably in their cells all day to gain a speedier release?

Incidentally, I agree with witheld that PDs get a bad rap. PDs or court-appointed attorneys are usually the ones most familiar with the ins and outs of their particular system. They're going to know how to deal with the prosecutors and the judges and what the practices are. They're thus FAR more likely to get a good deal than a high-priced attorney with an ego to match who comes in thinking he can strong-arm a good deal because of who he is.

Also, indigent defendants usually have a really hard time of figuring out who the best attorneys are. I know of a guy who was given a court-appointed lawyer but rejected him and hired someone instead because court-appointed lawyers aren't any good. Well, it so happens that his court-appointed was actually a very good and well-known specialist in this type of case who just took on court-appointments from time to time. The hired attorney was an idiot who rarely did criminal law.
2.15.2008 1:08pm
Zywicki (mail):
"Using functional magnetic resonance imaging ("fMRI"), researchers can observe a subject's brain..."

I was going to make a joke about the difficulty that would be involved in measuring Paris Hilton's brain activity, but that just seemed too easy.
2.15.2008 1:38pm
doug fretty (mail):
The practice of individual sentencing calibration poses an immediate class dilemma: in many cases, only well-heeled defendants would be able to afford the psychological evaluations and brain scans that could support a claim for leniency.

It's unreasonable to expect tax dollars to pay for such evaluations in all cases. The result would be perverse--the people who merit the least leniency (assuming that the rich can avoid criminal activity more easily than the poor) would benefit the most from individual calibration!
2.15.2008 2:22pm
A.C.:
On the other hand, many of the rich seem to have a sociopathic streak that might render them less sensitive to suffering. Shrinking violents don't make large fortunes.
2.15.2008 2:25pm
John M. Perkins (mail):
Tort law is more analogous to insurance law or workers' compensation law ...

where a broken arm is worth $5K.
2.15.2008 2:26pm
A.C.:
Make that "shrinking violets" -- although the other is strangely appropriate.
2.15.2008 2:26pm
Rodger Lodger (mail):
I can't explain exactly why, but this article reminds me of the one about ten years ago advocating a new cause of action for wrongful seduction, such as obtaining consensual sex by deceit as to expressions of affection. Maybe the similarity is by the time the thesis is fully explained and defended it is even less persuasive.
2.15.2008 2:37pm
anym_avey (mail):
The rich have both less to gain by economic crimes and more to lose.

How about we change that to more to gain and more to lose? Being rich normally confers a wider range of opportunities, both for good or ill. On the "ill" side of the equation are the ability to illicitly grab after larger pots of gold, via subtler and harder to detect mechanisms, and harming a wider group of people in the process as compared to, say, the poor criminal who holds up a liquor store.

Someone already described an S&L CEO embezzling $50M; another obvious example is Andrew Fastow.
2.15.2008 2:42pm
Displaced Midwesterner (mail):
What about the issue of becoming acclimated? After a certain amount of time in prison, I would not be surprised if many (though not all of course) people's subjective experiences converged. And it seems like it would be very difficult, even with tech advances, to predict the degree to which the actual experience of prison will change the person's experience of prison later on in the sentence.
2.15.2008 2:42pm
EH (mail):
I find it amusing that so many here support the rationale that the likelihood of rehabilitation means that rehabilitation should not take place. The Prison Industrial Complex wends its tentacles pretty far into the common wisdom, it seems, since rehabilitation has long since gone the way of the Dodo bird in terms of the goals of prison sentencing.
2.15.2008 3:21pm
Duffy Pratt (mail):

Duffy Pratt: Is your last sentence correct as regards your intentions? (Do you want to say the CEO got off easy?)


Thoughtful:

I know that sarcasm often doesn't play well on the net. Here, I thought the example was so over the top that the sarcasm would be fairly evident. Given the extreme nature of alot of the commenters here, I should have known better. On any day, the sentence given to that woman would have struck me as being absurd and unjust, even though it was at the minimum of the guidelines. Having the light sentence of the S&L CEO occur on the same day merely highlighted the injustice. He was responsible for the ruin of many lives and families. His "suffering" was from the loss of a lifestyle he obtained mostly by fraud, and from the disgrace attendant on being exposed for what he was.

The woman, on the other hand, was as close to a figure from Les Miserables as I have ever seen. She was little more than a wair, horribly disfigured. During her time spent in prison without bail, she had kicked her painkiller habit and become a born-again Christian. Her conversion didn't impress me that much, because I think she was a natural born follower. However, I think it did mean that she likely had a support community that would welcome here, and perhaps a path - once out of jail - to find a welcome place in ordinary society.
2.15.2008 3:37pm
ReaderY:
As I understand the theory, it seems to be more or less on the lines of "rich people are very delicate and refined, so they deserve less punishment for the same offenses than those coarse poor people."

No problem! Punishment affects people's constitutions and levels of refinement. Just give rich people enough punishment to coarsen them up. That way, there can be no claim of unequal justice. Only if one FAILS to do this could their be such a claim.

Note: If the slaves complain, just whip 'em more. If they try to learn how to read, repeat. The law historically has frequently maintained distinctions between the delicate and the coarse classes, generally enforcing them through severe disabilities on the latter, including draconian measures to prevent them from behavior that would tend to lessen their coarseness or make them able to communicate or appear sympathetic.
2.15.2008 3:43pm
A. Zarkov (mail):
"The S&L CEO got 20 months, most of it served in a halfway house. The woman got 10 years in a maximum security prison (the notes she handed the tellers made her crime an armed robbery, even though the gun was a pure fiction, …"

The CEO had a better lawyer, that's all. The woman probably had priors. Of course Virgil Starkwell also went to the big house because of problems with his holdup note. "Abt natural I've got a gub." Why do you expect justice? Justice has nothing to do with court proceedings.
2.15.2008 4:12pm
Toby:
It is well known that those with ADD and ADHD get bored easily. Since the boredom of prison is part of the punishment, I should got to prison for aobut, ohhhh, 10 minutes.
2.15.2008 4:46pm
not listed:
The woman, on the other hand, was as close to a figure from Les Miserables as I have ever seen. She was little more than a wair, horribly disfigured. During her time spent in prison without bail, she had kicked her painkiller habit and become a born-again Christian. Her conversion didn't impress me that much, because I think she was a natural born follower. However, I think it did mean that she likely had a support community that would welcome here, and perhaps a path - once out of jail - to find a welcome place in ordinary society.

I think you hit the nail on the head as to why so many of us who could have cashed in at biglaw chose poverty law instead.
2.15.2008 4:55pm
Thoughtful (mail):
Duffy P:

No, I understood it was satire on your part. In fact, it was so extreme I thought you probably made the stories up to fit your point, though your second post implies the stories were both real.

My point was slightly different. I assumed you were trying to say that while initially you felt the CEO got off lightly and justice came down too hard on the poor woman, now that you read about measuring subjective punishment experiences and taking them into account during sentencing, you realized the opposite was true: that the CEO was punished too harshly while the woman was punished too lightly. Thus, your satiric point.

My point is as follows: when you say "Until now, I always thought this result was a little unjust. Now, I understand that it was, but in the wrong way. Now I know that the CEO got off easy, and the woman should have served more time." you are not saying, as I think you satirically intended, that the CEO was punished too harshly. Saying he "got off easy" is saying he was NOT punished too harshly. That's why I asked if that's what you wanted to imply.

It's a minor point, and I enjoyed your satiric comment.
2.15.2008 6:31pm
Pyrrhus (mail) (www):
Mr Liberal



Simply equating an emotion with a cost (or benefit) is problematic.




Why?

If someone experiences extreme emotional anguish, how is this not a cost? Wouldn't most people pay money to avoid such an experience?


I don't intend to argue that pain is simply not a cost, or does not likely entail some cost. It is the attempt to draw a direct relationship between the two that I think is problematic.

Conceptions of costs, I would argue, change very much depending on the view you take. Consider short-term views and long-term views of pain.

In the short-term, the amputee might consider both the pain and the loss of an arm to be "costs." In the long view though, he may forget the pain, and regret only the loss of the arm (much as I have forgotten the pain I felt when I wore braces, but continue to enjoy the "gain" of straighter teeth).

Yes some people would pay to avoid pain, but how many others would accept pain for money? How else does one account for i-banking jobs? Or the economy in general, you might say.

Pain is an instinct that leads you away from harm. It convinces you not to touch a burning stove or hit your genitals with a baseball bat. It generally leads you to do things that are good in at least an evolutionary sense.

Because we are "inside" the machinery of our body, it is not necessary for us to understand the difference from the (evolutionary) costs and the pain, so we can generally just pretend that the pain is the cost itself: doing so will still allow us to avoid the burns and smashed genitals. And perhaps in a more fuzzy, non-evolutionary sense we can think of an instance of pain as a "bad thing".

But that certainly doesn't mean it can be usefully regarded as a cost from the point of a prison system. We punish people by locking them in rooms. Claustrophobes may suffer more in the moment of punishment, but I'm not sure that necessarily means they will be disincentivized more in the future. A second mechanism, likeliness to be disincentivized by pain, interferes.

In the long-run of human evolution, rewarding claustrophobes just encourages claustrophobia. Why not only reward likeliness to be disincentivized by punishments instead?

I think both ideas are present in Kolber, but they are mixed up a bit. Or I may not be reading closely enough.
2.15.2008 7:38pm
Duffy Pratt (mail):
Thoughtful:

Doh! Of course you are right.

And yes, the stories are both true, at least on the main points. I don't quite remember whether the woman got 10 years or 20 years. But it was one or the other. Both sentences were within the guidelines. And it was not the worst miscarriage of justice I saw, just the most pointed.

Another time, we had a guy who was nailed for his third attempted burglary. Unfortunately for him, on this one, he was carrying an unloaded gun. He had never actually committed a successful burglary, and this was the first time he had a gun with him. It was unloaded, and it was found on him, though he did not use it in his failed break in. Under the statutes, he got put away under a federal gun law, combined with a three strikes and you are out for a violent felony law. I think he got 30 years on a mandatory minumum. He got this despite the fact that he had never hurt anyone, and had never successfully stolen anything (at least on the bungled attempts where he had been caught).

The same day, we had another guy who was being sentenced for statutory rape (on an Indian Reservation). He had plied a fourteen year old with liquor, and then raped her at knifepoint. He also had two priors. Both of them were for statutory rape as well. The underlying facts of both of those offenses also showed that there had been a reduced plea, and the statutory rape involved threats with knives and guns, and a severe beating of one of the girls.

In the 8th Circuit, attempted burglary is, by definition, a violent felony. Thus, the bungling burglar got 30 years. Statutory rape, however, is not a violent felony. So federal law did not impose the three strikes rule on the violent rapist, and he managed to plead down all three times to a lesser, non-violent, offense despite the actual nature of his crimes. He ended up getting the upper end of the guidelines, which I think was 28-30 months, or thereabouts.
2.15.2008 8:13pm
Elliot123 (mail):
All this sounds like the PC Olympics. Don't worry; everyone gets the gold so the sensitive are not offended.
2.15.2008 8:39pm
AnneS (www):
Pyrrhus - Pain is not an instinct, it is a reaction to stimuli. It is evolutionarily useful only to the extent that you remember it and avoid the stimuli that cause it. While you may forget physical pain in the long term, a lot of people don't, especially if it was significant (losing an arm) and they realized no gain at the end of it (like having straight teeth - you may want to rethink mixing those metaphors, by the way). A cost may sometimes be worth the gain, but for the amputee or the prisoner, the pain caused by their ordeal rarely provides them any gain to compensate.

Pain is a cost not just in the short term sense - time spent in pain is time you could have been more productive, dancing, having sex, whatever - but experiences that cause significant physical pain can also cause significant and lasting psychological trauma. The pain is not merely correlative of the psychological harm - it is one of its causes.

The problem with conceptualizing pain as a cost is not that it isn't really properly classified as a cost, but that it is difficult to attach a value to that cost in a reliable way.
2.15.2008 9:13pm
Pyrrhus (mail) (www):
"Pain is not an instinct, it is a reaction to stimuli."

My terminology may be off but I don't think it is relevant to my argument.

"Pain is a cost not just in the short term sense - time spent in pain is time you could have been more productive, dancing, having sex, whatever -"

Not at all out of line with my point.

"but experiences that cause significant physical pain can also cause significant and lasting psychological trauma."

This may be true and it is my point: it is not the pain itself that we should be interested in for punishment, it is the lasting aversion to that pain. I'm fairly confident the two are separate experiences. We can imagine an organism that feels immense pain in the moment but develops no aversion to entering situations that risk the recurrence of that pain.
2.15.2008 9:32pm
Curious (mail):
WAY OFF TOPIC:

Duffy,

I'm not a lawyer, but I'm floored by your last post. (Maybe that should read, "...so I'm floored by your last post."

It seems to imply that whenever someone under the legal age of consent has intercourse, it's "statutory rape" even if force is involved. It seems to imply that rapists can lower their offense from rape to statutory rape by choosing someone underage. If this isn't the case, how can someone who used physical force and a knife be tried for statutory rape (not a violent felony) and not actual rape (which--please tell me it's so--IS a violent felony)?
2.15.2008 10:24pm
AnneS (www):
But how does that make pain NOT a cost worth considering? It may be a cost worth paying in some circumstances (i.e., the child who mildly burns her hand and remembers the sensation sufficiently to avoid hot stoves in the future), but that doesn't make it not a cost. Pain can also create excessive or counterproductive aversion, as well as other psychological damage that manifests in other, less potentially useful ways. For instance, if your amputee lost his arm after being hit by a car that jumped a curve while he was walking down the sidewalk, the pain could create a debilitating aversion to walking down the sidewalk. Or the pain of a punishment could cause so much damage to the prisoner that he is unable to resume productive life as a law abiding person.

Pain is a cost to the individual experiencing it. It may not always yield a net individual or societal cost, but it's still a cost. It has a number of potential negative consequences and the natre of its direct benefits - like aversion - are such that more is not always better. If one accepts Kolber's premises (I agree his discussion is rather muddled), the amount of pain and its negative consequences should be considereed because they are a cost to be weighed against its benefits. If society can achieve it's desired Y units of benefit (aversion+retribution+deterrence) for X units of pain, each additional unit of pain is simply an excess cost.
2.15.2008 10:29pm
Pyrrhus (mail) (www):
"Or the pain of a punishment could cause so much damage to the prisoner that he is unable to resume productive life as a law abiding person."

What you are describing is not the a cost of experiencing pain itself (a direct cost) but an indirect cost that intermediate psychological mechanisms link to pain. I'm not denying that intense irrational aversions are a cost. But I think it is unhelpful to lump the whole thing together under the title of pain when the aversion itself is the important conception.

At the risk of stupefying the conversation, let me suggest a mathematical analogy. If you have an aversion function f(g(x)) that depends on your pain function g(x), which itself depends on level of negative stimulus x the prison system should not be interested in you x of g(x) per se, it should be interested in your f(g(x)). Yes, for the risk function you need to know x and g(x), but knowing x and g(x) is not enough. Ultimately we are interested in f(g(x)).
2.15.2008 11:44pm
Duffy Pratt (mail):
Curious:

He could have been tried for forcible rape in each of the three instances. Instead, to avoid a trial, he got a plea agreement each time. The state (the Feds actually because it was a reservation crime) dropped the forcible rape charges each time and let him plead to statutory rape. There was a factual basis for this each time, since the girls were all between 12 and 14. The plea also protected the reputations of the girls, because it meant that they could avoid publicity and not be dragged through a trial.

In the 8th circuit, when deciding whether a crime is violent or not under the three strikes law at the time, the court had to look at the nature of the crime itself and not at the facts underlying the commission of the crime. Thus, as a matter of law, statutory rape is not violent no matter how violent the rapes were. And conversely, burglary (and its completely bungled attempt) is violent no matter how peaceful the actual facts were.
2.16.2008 12:48am
A Guest:
Pyrrhus:

"We can imagine an organism that feels immense pain in the moment but develops no aversion to entering situations that risk the recurrence of that pain."

I eat habanero peppers frequently.

(No, that's not me in the video :-) )
2.16.2008 2:08am
Ursus Maritimus:
"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."

http://en.wikipedia.org/wiki/Image:Varian4T.jpg

Good luck getting that into a prisoner-proof wearable piece of headgear within ten years.

And what would the ACLU say about constant remote reading and recording of prisoners mental states?

Especially since we will probably be much better at interpreting the patterns by then. Nothing close to "mind reading" ofc, but things like "He is angry because what he is hearing" or "What he sees reminds him of an old trauma".
2.16.2008 11:37am
Richard Aubrey (mail):
One of the points of the old Princess and The Pea story is that such a wuss is a loser. We're glad it worked out for her, but that someone like that (Paris Hilton)is pushing the worse-for-me-than-for-you-proles thing is likely to generate negative public sympathy.
As a practical matter, stoicism is likely to be a more sympathetic position. Or am I in the wrong century?
2.16.2008 11:56am
Mr. Liberal:

The idea that by definition PDs aren't good defense lawyers is absurd.


First, I specifically said that I thought Public Defenders were not bad. But I do think they are resource constrained.

Second, I should play devil's advocate less. =)
2.16.2008 12:56pm
Pyrrhus (mail) (www):

I eat habanero peppers frequently.


Ha! A good example.
2.16.2008 1:35pm