Academic

Bronsteen, Buccafusco, & Masur on Retribution & the Experience of Punishment

By Lawrence Solum

John Bronsteen (Loyola University Chicago School of Law), Christopher J. Buccafusco (Chicago-Kent College of Law), & Jonathan S. Masur (University of Chicago - Law School) have posted Retribution and the Experience of Punishment (California Law Review, Forthcoming) on SSRN. Here is the abstract:

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount ? as virtually everyone does ? must therefore confront the implications of hedonic adaptation. Moreover, the unadaptable negativity of post-prison life which is caused by the experience of imprisonment results in punishments that go on far longer than is typically assumed. Objectivist retributive theories that fail to incorporate these facts risk creating grossly excessive punishments. Certain retributivists have disputed the claim that adaptation is important to punishment theory, but their arguments are unavailing.

And from the paper:

A retributivist might claim that, beyond merely being imposed in response to crime, deprivations of liberty and property communicate condemnation for reasons other than that those deprivations are typically associated with negative experience. For that matter, a retributivist might maintain that objective deprivations of liberty constitute punishment irrespective of whether they involve negative experience.39 Gray takes this approach.40 Of course, anyone who wishes to make this argument must still explain what it is about these deprivations?apart from the imposition of negative experience?that communicates condemnation. We suppose that Gray or MF (Dan Markel & Chad Flanders) could try to generate a grand metaphysical argument about value wherein liberty and property somehow have ?objective? value independent of any interaction with human experience (or at least independent of the positive experience that people associate with having liberty and property).

On this point, a quibble.  It hardly takes a "grand metaphysical argument" to establish that liberty and property have objective value, but objective value need not be "independent of any interaction with human experience."  (Here is a link to the Markel & Flanders paper.)

Highly recommended.

Full post as published by Legal Theory Blog on October 28, 2010 (boomark / email).