Crime and punishment: examining proportionality issues within criminal law

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Content CRIME AND PUNISHMENT: EXAMINING PROPORTIONALITY ISSUES WITHIN CRIMINAL LAW by Jacquelle Ofori Amankonah A Thesis Presented to the FACULTY OF THE USC GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree MASTER OF ARTS (PHILOSOPHY AND LAW) May 2012 Copyright 2012 Jacquelle Ofori Amankonah ii TABLE OF CONTENTS ABSTRACT iii INTRODUCTION 1 SECTION ONE: Civil Law vs. Criminal Law 4 Baselines in Civil Law 5 Differences Between Civil Law and Criminal Law 7 Victim Harm vs. Offender Harm 8 Wrongfulness-Harmfulness Distinction 9 Factors of Damage Calculations in Civil Law 9 Factors of Punishment Calculation in Criminal Law 9 Harmfulness to a Victim 10 Degree of Criminal Intent 10 Aggravating and Mitigating Factors 14 SECTION TWO: Additional Harm To Higher Baseline Offenders 17 Additional Harm is Unjustified 17 Justification of Additional Harm 19 Punishing on the Basis of Moral Wrongdoing 20 Victim Status and Offender Misery 21 Recapping Sections One and Two 24 SECTION THREE: The Subjective Currency of Harm 25 Subjective vs. Objective Harm 26 Recalibration of Baselines 28 Hedonic Adaptation 28 Studies on Offender Adaptation 29 Victim Baseline Calibration 32 Baseline Factors 33 Needed Exploration of Baseline Timelines 34 CONCLUSION 36 BIBLIOGRAPHY 39 iii ABSTRACT As a strong contributor to the conversation about proportionality within the criminal justice system, Adam Kolber makes a compelling argument in his paper, The Comparative Nature of Punishment, to dismiss the common belief that the same prison sentence punishes offenders of the same crime by equal severities. He suggests that an offender with a high baseline, a level to designate one’s quality of life, would be punished more severely if he were brought down to the same prison conditions as someone who started with a lower baseline. Baselines must be considered in order to ensure we are harming offenders proportionately. As Kolber concedes, however, odd results will follow when applying this theory in practice. If a millionaire and a homeless person committed the same crime, we would have to punish the millionaire by moving him from his penthouse loft and imprisoning him in a small condo on the sixth floor while punishing the homeless person by moving him from the street’s back alley and imprisoning him in a roach-infested cell in a basement. Punishers should not be forced to abide by these strange guidelines in order to reach proportionality as Kolber’s argument suggests. In this paper, I present three opposing views to Kolber’s argument: 1) Punishing offenders by only regarding their baseline does not account for other factors involved within the calculation of criminal punishment, 2) the additional harm suffered by higher baseline offenders is justified within the current punishment model, and 3) this additional harm may not even be present within current practices. A critical discussion of proportionality issues in criminal punishment follows. 1 INTRODUCTION The majority of us believe that criminals charged with the same offense should be given the same amount of time in jail. Two bank robbers who steal $10,000 from Bank X should each be given the same prison sentence for committing this identical crime. However, Adam Kolber offers a particularly enlightening discussion within his paper, The Comparative Nature of Punishment (2009), which suggests that this intuition most of us hold is mistaken. He argues that sentencing practices within the criminal punishment system administer disproportionate amounts of harm to offenders who have committed the same crime. The current method, what Kolber calls the absolute model, punishes equally-blameworthy offenders with the same length of time in jail, but offenders who started out at different levels in life are being harmed by different amounts when they are brought down to the same prison condition. To realize the discrepancy Kolber wants to address, imagine Offender A and Offender B as two criminals who committed the same crime put in the same jail for the same 5-year-sentence. Under our common intuition, this so far seems to be equal punishment. However, continue to imagine Offender A as an extremely well-off multi-millionaire and Offender B as a homeless person who has lived on the streets for years. The harm from a 5-year-sentence within these conditions is felt at different severities when we compare the deprivations of the two offenders. Due to Offender A’s high pre-prison condition, he is being deprived of several luxuries and advantages that he would have enjoyed had he not been in prison, while Offender B, of a much lower pre-prison condition, is being deprived of significantly less advantages than Offender A. Kolber calls these pre-prison conditions a person’s baseline, which he 2 advocates must be considered when assessing harm inflicted on criminal offenders. If Offender A was at baseline 50, for example, and Offender B was at baseline 25, bringing both of them down to the same prison condition of a level 15 has harmed Offender A by 35, which is more severe than Offender B’s harm of only 10. Kolber stresses that we are mistaken for believing that offenders of the same crime imprisoned for the same amount of time are receiving equal punishment. In reality, offenders who have started at higher baselines are being harmed more severely by their more significant drop down to prison level conditions. Kolber uses the evidence of this discrepancy to propose a new method of punishment that will reach proper proportionate harm for offenders of the same blameworthiness. The comparative model of punishment brings a person down from his baseline condition to a harmed condition by an amount equivalent to his culpability. For a crime requiring a harm infliction of 20, Offender A would come down from 50 to 30 and Offender B would come down from 25 to 5. Comparative punishment would properly inflict the same amount of harm to offenders of equal blameworthiness while the current absolute model would punish offenders with different amounts of severity. Kolber’s proposal is that we must instill this comparative notion of punishment in criminal law in order to administer proportionate harm to offenders. He argues that if we do not punish comparatively, then retributivist punishers are at significant risk. The proportionality principle that guides the retributivist theory would collapse without the comparative model since they would not be punishing proportionately, causing them to lose their claimed superiority over consequentialism. 3 Through an analysis of Kolber’s paper, we find that his argument is not plausible since it relies on several assumptions about our current model of administering punishment. These claims must be scrutinized in order to agree with his opinion that we need to part ways with present practices and punish offenders through the comparative model he proposes. We must ask several questions to seek out the potential for disproportionate punishment within our current sentencing practices and to assess the capabilities of Kolber’s new theory. I will discuss the following three inquiries in this paper: 1. Will the comparative model account for all of the factors involved in calculating criminal punishment? 2. Can we find a way to justify the additional harm that Kolber claims exists in the current punishment model? 3. Is this additional harm even present? Section 1 discusses a comparison that Kolber makes between areas of civil law and criminal law to show that the use of the comparative model in torts and contracts does not provide sufficient reason to use the comparative model in criminal law. Section 2 suggests that the additional harm Kolber claims is inflicted on higher baseline offenders is justified because an offender’s blameworthiness may be correlated with his baseline. Section 3 examines the subjective reactions that prisoners experience once incarcerated to find that additional harm felt by offenders of a higher baseline may not even exist. The realizations herein show that our current punishment practices actually do administer equal punishments contrary to Kolber’s claims. 4 SECTION ONE: CIVIL LAW VS. CRIMINAL LAW Kolber argues that criminal law involves the same type of harm that exists in areas of civil law. This similarity should give us reason to adopt the comparative model in criminal law sentencing. He draws comparisons to the ways in which a victim’s harm in civil cases, correctly assessed using baselines, is the same kind of harm experienced by criminal offenders, which he claims is incorrectly assessed because of its insensitivity to baselines. He claims that without using the comparative model in criminal law, we are administering disproportionate punishment. Some offenders are receiving harm in excess of the harm they inflicted on their victim. The offenders’ punishment is likely inflicting harm more or less severely than required because their original baseline is not considered as the point from which to bring them down by an amount equivalent to the victim’s harm amount. In an examination of Kolber’s view, we can find that the similarities he provides do not lead us to conclude that we should assess the harm amounts in criminal law by the same model as civil law. There are prominent dissimilarities in these two areas of law that make their methods of harm calculations incompatible. The legal system applies a very specific process when determining the harm amounts to inflict on an offender: civil law considers the harmfulness of a crime while criminal law considers harmfulness and other factors that weigh into overall wrongfulness of the crime. There are separate formulas in each with different considerations that cannot be adopted by the other system of law. 5 Baselines in Civil Law Within areas of civil law, specifically torts and contracts, a person’s baseline is used to determine the amount of harm that was caused. As Kolber points out, if an offender crashes into a parked car, the harm caused is calculated by taking the difference in the car’s value before the crash and the car’s value after the crash. The change from one’s original baseline to the harmed baseline is used to determine the punishment for the offender. Contract law also uses the change in conditions to assess harm. In a contract breach, we calculate damages owed based on the difference between the condition of an injured party after the harm and either the condition before the contract was in place or the condition had the contract been fulfilled. Through either method, the change in conditions is used to calculate harm and warrant punishment to the offender. This change indicates the degree of harmfulness caused to the offender and is proportioned to the harmfulness amount needed to be inflicted on the offender. Kolber wonders why we diverge from this strategy once we move over to criminal sentencing and suggests that we do not. While other similar forms of harm severity are assessed comparatively, we still provide punishment to an offender in prison sentencing through absolute terms. Harm severity is currently assessed by examining the sentence itself rather than the change in life condition that the sentence causes. This absolute method is troublesome since it does not provide a true consideration for the amount of harm that is experienced by people of different baselines. To prove the similarity of harms within civil law and criminal law, Kolber compares a tortuous harm with the harms of incarceration through the following example. 6 Imagine that Carl, who is abducted and locked away in a small cabin, is successfully able to sue for false imprisonment once he is found. The court would assess the harm that Carl experienced in a comparative manner by looking at the change from his baseline condition before he was secluded and the harmed condition he was in during the seclusion. He is entitled to monetary damages based on the difference between the amount of income he could have earned while secluded as well as damages for emotional distress based on the difference between his baseline emotional state and the distressed emotional state he had while locked away. Both are calculations of the change in his condition. Now, consider Darren, an offender sent to jail for destroying public property. Realize that both Carl and Darren are confined against their will and differ simply because Carl had a right to his freedom while Darren did not. Kolber claims that the type, not necessarily the amount, of harm is the same in both cases. However, Darren’s harm is calculated in absolute terms by the length of his prison sentence and does not take his baseline condition into consideration. Kolber is troubled by this disparity and says that the similarity between these two circumstances points out the illogicality of calculating the harms through different fashions. Since Carl and Darren were both harmed by confinement, Kolber argues that we cannot switch to a different and inaccurate method of calculating harm once we are considering prison sentences. Carl’s harm in seclusion is that he is incapacitated resulting in a loss of income and emotional distress. Darren’s harm in prison is also that he is incapacitated resulting in a loss of income and emotional distress. These are the same types of harm. However, while Carl’s harm is assessed in a comparative manner, Darren’s harm is assessed in an absolute manner that does not 7 consider the change from his baseline condition. The right that Carl has to his freedom over Darren is the apparent difference in these cases, but that does not answer why the calculation of their harm must be different particularly when their harms are the same. Even though Carl’s change from his baseline condition might be more severe than Darren’s since his rightful liberties were deprived, Kolber claims that the structure of the calculation must be the same nonetheless. Differences Between Civil Law and Criminal Law Contrary to Kolber’s claim, civil law and criminal law differ significantly in ways that cannot allow us to use the same structure of calculation for harm. First, the goals of the two systems diverge as one aims to focus on the compensation for the victim while the other focuses more critically on the harm to the offender. Second, as a result of this difference, there are a number of different factors not considered in civil law that are apparent in criminal law. The additional factors add to the amount of harm infliction required for an offender but are not affected by the change in a victim’s baseline. Regardless of the amount of harm a victim received, which would play the sole role in civil offender harm calculations, criminal punishment needs to inflict a more severe sentence than the amount that would be calculated if we only took victim harm into account. Additional wrongdoing is found within other contributing factors to the offense to form the entire wrongfulness associated with the crime. We will see that the comparative model cannot consider these other factors and does not suffice as a method of calculation for offender harm that can work within criminal law. 8 Victim Harm vs. Offender Harm Civil law is squarely focused on remedying a victim’s condition and compensating him for the harm that he received. Baselines are considered in order to measure how much harm is inflicted onto the victim, which then determines the amount of damages that the offender owes to the victim. These processes are meant to restore the victim back to his original condition, and at the victim’s request, the offender serves as the source of the compensation that will return him back to his pre-harmed condition. Criminal law takes an opposite approach with its victims and offenders. The harm caused to the victim only gives way for the legal system to now take reign and punish the offender for the wrong he has done. This punishment given to the offender is not done with the aim or intention of restoring the victim back to his original state. Rather, the focus is on harming the offender to denounce his wrongdoing as an immoral fault. While civil law focuses on the victim and uses the offender merely as a source for obtaining what will re-compensate him, criminal law does not attempt to restore the victim or ask for his participation, and instead takes on proportioning the harm to the offender by its own means. This is precisely why the two are contrasted as private suits and public suits. We are focused on having criminal law offenders actually feel the harm that they inflicted. Civil law offenders are meant merely to provide compensation to a victim so that the victim is properly restored. This brings rise to the reasoning why there is more at stake for an offender’s harm in criminal law that gives reason for us to consider other factors besides harm to the victim that contributes to the immorality associated with the crime. 9 Wrongfulness-Harmfulness Distinction The meaningful distinction between civil law and criminal law is the different components that make up their harm calculations. Harm to an offender within civil law is based strictly on how much harm he caused to the victim. Harm to an offender in criminal law, on the other hand, considers other factors in addition to the harm inflicted on the victim that are not based on a change in baseline. The two systems use different variables for determining the necessary harm infliction needed for the offender, which shows that civil law and criminal law are not able to employ the same harm calculation model. Factors of Damage Calculations in Civil Law The harm inflicted on an offender within civil law needs to be proportioned to the harm that he inflicted on his victim. If an offender brings a victim down from his baseline by 20, then he needs to be harmed with a 20 point decrease from his baseline. Harmfulness to a victim is the only factor involved in the overall wrongfulness of a civil law offense that determines the harmfulness needed to be inflicted on the offender. Thus, the harm calculation within civil law is as follows: Wrongfulness of a tort/breach = Harmfulness to an offender = Harmfulness to a victim Factors of Punishment Calculations in Criminal Law The amount of harm needed to be inflicted on a criminal offender is not just a measure of the amount of harm he inflicted on his victim. In a much larger scope, the wrongfulness of a criminal law offense contains other factors aside from mere harmfulness. Intent plays a powerful role in how we determine wrongfulness in a crime. 10 This in turn influences the sentence length that an offender will receive. Aggravating and mitigating factors can also intensify or lighten the harm that needs to be inflicted through an offender's punishment. These other factors would be ignored if assessed through the comparative model since they are not a function of a change in baseline. The harm calculation within criminal law is as follows: Wrongfulness of a crime = Harmfulness to an offender = Harmfulness to a victim + Degree of Criminal Intent + Aggravating and Mitigating Factors Let’s examine each of these contributing variables in detail. Harmfulness to a Victim Harmfulness serves as a function of overall wrongfulness within a criminal offense and is used as a portion of the calculation for offender harm. If an offender burglarizes a home by stealing two pillowcases, he has caused little harm to the wellbeing of his victim. The decrease of the baseline to the victim is slight. However, an offender would be punished more for this crime than what would be proportionate to this minor harm caused to the victim. There is additional blameworthiness involved in committing a burglary as harmfulness is not the only factor that comes into play to determine criminal punishment. More needs to be considered to determine wrongfulness. Degree of Criminal Intent Intent plays a significant and sometimes independent role in the culpability of a criminal offender. Conspiracy to murder, for example, is a punishable crime that does not cause actual harm to any victim. However, an offender is still punished because other factors contribute to the wrongfulness of a crime. On the other hand, intent plays nearly a 11 nonexistent role within torts and contracts. For example, a contractor can have the worst intentions to try to sabotage the finish date of a project by putting awkward wording in the contract and delaying construction in all cases possible. However, if the house is completed fine by the day promised, there is no damage that the homeowner can recover from. Civil law seems to abide by the mantra ‘no harm, no foul’. In criminal law, however, there can be little to no harm done, but with significant intent to commit wrongdoing, the offender is punished under the law. The differentiating factor from civil law offenses is that the mindset, or mens rea, that the offender was in when he committed the crime plays a large role in determining the wrongfulness that criminal punishment is proportioned to in regards to intent. A homicide containing malice, for example, has a higher wrongdoing than manslaughter, a homicide with no intent. Intent helps determine the amount of blameworthiness to factor in to the overall wrongfulness of the crime from which to proportion offender punishment. Victimless crimes also help show that having no harm in a crime can still result in punishment based on other factors of wrongdoing involved. Someone carrying a gun without a license is not causing harm to a victim nor would he cause any extra harm than a license-holder would if the gun was used, yet he would still be punished for the act based on the wrongfulness outside of the harmfulness. A civil offender will only be harmed by damages that equate to the harm he inflicted on a victim, but a criminal offender can be harmed by punishment even when there was no harm done. 12 Now, the debate continues about whether or not society is the victim in victimless crimes. Perhaps the offender is punished for bringing danger to the community or disrupting the social behavior that society promotes. However, this does not bring us any closer to concluding that offender harm in criminal law can be assessed by baseline changes. If we were to try to measure the change in conditions of a society that is harmed when a prostitute, for example, engages in acts with a willing participant, that amount typically does not equal the amount of punishment given to the offender during sentencing. The prostitute and participant could each spend 1 year in jail while society could see only a minor decrease from its baseline, if any. All the while, another offender convicted of assault caused significantly more harm to the victim of his crime and also spends 1 year in prison. The harm amounts to the victims are different, but the offenders are punished the same. This is not just another sign of disproportionality within prison sentencing that Kolber tries to address; instead, it shows harm that is inflicted based on other contributing factors to the moral wrongdoing within criminal punishment. Punitive damages serve this role within civil law, but that is only on top of existing damages and cannot act as the sole harm infliction to offenders as it can in criminal law. The majority of the tort system is dominated by negligence liability that measures for damages based on the harm caused from that negligence. The measure does not take factors such as intent into account. Damages are proportioned entirely to harmfulness within the widest scope of civil law. We can see that intent as an additional factor required for the calculation of criminal offender harm helps separate the process from the calculation of civil offender 13 harm. The additional factors present are not dependent on the change of the baseline of the victim that we are restricted to consider when using the comparative approach. It is tempting to suggest that perhaps these factors do vary with baseline change. We could say that higher levels of intent might cause a further decrease in a victim’s baseline. However, this is not the case in many instances. For example, if I intend to hit you with my car, the amount of harm that this would cause will vary at a different rate than my intent will. I can intend to hit you very hard, but having pressed the break too early, I actually only cause you to trip over your feet and inflict little actual harm. At the same time, I could intend to just play a joke on a buddy with a little tap of my car only to catch him off guard and cause him to fall forward and break his jaw. We can see that the level of intent contributing to the wrongfulness of a crime does not correlate with the change of a victim’s baseline. Therefore, we cannot rely on the comparative notion of punishment for criminal law that only allows us to calculate harm to an offender on the basis of a change in baseline. The comparative notion suffices for a strict harmfulness calculation, as is used in civil law, but it cannot account for the other contributing factors that are apparent in criminal law. In what way can this realization impact Kolber’s position? Once we account for the additional factors in criminal law, the comparative model is not applicable. Additional factors outside of harmfulness could in some instances trump the severity of harm to a victim and play a more important role in determining criminal wrongfulness. Once again, victimless crimes show that while harm amounts are minuscule if even apparent, the additional culpability that exists outside of baseline drops serves to contribute to the harm 14 amount needed to be inflicted on the offender. In these common crimes, factors other than harmfulness play a larger role in the punishment severity calculation and the comparative model cannot take a large role in this process. The change from an offender’s baseline cannot simply mirror the change of his victim’s baseline since there are more factors that need to be added to the calculation. The offender may be dropped down farther than his victim was due to additional factors of intent and moral wrongdoing that add to the overall wrongfulness of the crime. That amount of wrongfulness, not merely the harmfulness, is what criminal offender harm must be proportioned to. Kolber’s push to strictly use the comparative model cannot adopt the additional complexities that are apparent within criminal law sentencing. We see that the baseline plays a less important role in criminal law because there are other, sometimes more significant, factors to consider. These can include components such as intent that are not affected by baseline. We are proportioning harm to criminal offenders to more than just baseline-related harmfulness. We can see that baseline matters to a certain degree in criminal punishment but not as significantly as Kolber may have thought because other factors come into play for offender harm calculations. This has served to weaken the analogy Kolber makes between criminal law and civil law. There is a more complicated formula in criminal law for that which we are proportioning punishment to that is not apparent in civil law. Aggravating and Mitigating Factors Circumstances that suggest an offender should receive either a lighter or harsher sentence also play a part in determining the criminal offender harm. Aggravating factors 15 in a crime, such as aiming to hurt a specific race/gender/sexuality, suggest that a more severe sentence may be required for an offender once this factor is considered. There is reason to suggest that an offender should receive additional punishment if a crime is especially shocking or upsetting, or if an offender has a long history of criminal activity for which his recidivism is increasingly frowned upon. Similarly, mitigating factors suggest that an offender should receive a less severe sentence than his harmfulness in the crime itself would ordinarily dictate. A defendant who shows extreme remorse for committing his crime or has a tragic past in his personal history provide reason that an offender should receive a lesser sentence. We can see with these factors that criminal punishment is not proportioned to the harmfulness caused to the victim as it is in civil law damages. Instead, punishment is proportioned to the wrongfulness of the crime, where a crime is more wrong if aggravating circumstances exist and less wrong if mitigating circumstances are present. As we saw with intent, these additional factors are not dependent on a change in baseline. Whether or not a victim was harmed to a degree of 5 or 50, aggravating or mitigating circumstances can affect offender harm independent of this amount. Once this is applied to offender harm, we see that additional factors are present outside of those taken into consideration in civil law to determine the amount for which to bring a criminal down from his own baseline. The additional amounts present in criminal law weaken Kolber’s claim that it should be analogized with civil law. The two areas of law do not consist of the same variables of harm and cannot use the same system of calculation. 16 Some people may wish to bring up that some aggravating and mitigating circumstances might exist in civil law as well, but this point cannot strengthen the claim that the two areas of law should use the same formula. Aggravating and mitigating factors outside of the harmfulness of the offense play a much more significant role in criminal law than it does in civil law. We see evidence of how heavily they are weighed with the strict ‘three-strikes-rule’ in criminal law based on the aggravating factor of prior offenses. We do not see as heavy of a weight placed on outside circumstances besides actual harmfulness in civil cases to determine damages. Aggravating and mitigating factors can be, for example, about a third of the full wrongfulness taken into account in criminal law. Civil law could perhaps at most only hold about a tenth weight for these factors within its harm formula. The areas of law still hold a different calculation in determining harm amounts owed to offenders. There is a more complicated formulation in criminal law with significant weight placed on factors outside of harmfulness. These additional factors used to calculate criminal punishment are not present in civil law. Kolber’s claim that the two areas are similar and thus should adopt the same harm assessment calculation is flawed on this basis. 17 SECTION TWO: ADDITIONAL HARM TO HIGHER BASELINE OFFENDERS We have found that criminal law is not as critically affected by baselines as it is in other areas of law. It is still important to assess the way in which baselines matter in the areas that they do come into play within the calculation of harm for criminals. A critical assessment here will seriously consider Kolber’s claims that promote the importance of offender baselines. In what way exactly do offender baselines matter in criminal punishment? Exploring this question leads us to see that an offender baseline can itself impact the moral culpability associated with a crime – the higher the baseline, the higher the immorality. Given two offenders that commit the same crime, we would find more moral wrongdoing in the offender at a higher baseline than we would in the offender of a lower baseline. This is based on both intuition and standard punishment practices in the criminal law system. As a result, the additional harm that Kolber claims exists for offenders of higher baselines may actually be justified contrary to his claims. We can assess the complexities that exist with these baselines to refute the claim that Kolber relies on throughout his entire paper stating that additional harm we see in the current punishment system is unjustified. Additional Harm is Unjustified One of Kolber’s initial premises in his paper is that when two offenders of different baselines commit the same crime and are given the same punishment, the offender with the higher baseline is receiving additional harm that is not justified. Remember the example presented earlier where Offender A at baseline 50 and Offender 18 B at baseline 25 are brought down to the same prison conditions of 15 for committing the same crime. We would ordinarily believe that they had received equal punishments. However, these punishments are unequal, since Offender A is receiving a harm amount of 35 while Offender B is receiving a harm amount of 10. Whether the correct harm amount due for that specific crime is supposed to be 35, 10, or another amount, one or both of the offenders has been punished disproportionately to the harm amount that was required. Kolber claims that since their amounts of blameworthiness were the same, they need to be punished by the same amount of harm relative to their baseline. Failure to do so would mean that one offender is not brought down from their baseline by the same amount of severity that he caused to his victim, and the punishment is therefore not proportionate. Kolber claims that in the instances where there is an excess of harm inflicted on the offender, this additional amount of punishment is unjustified. Since we must rid of unjustified punishment, we must instill the comparative notion of punishment because it is the only way to reach proportionate punishment. However, we can actually see that the additional harm felt on offenders of higher baselines is justified. Kolber is assuming that two offenders of different baselines who commit the same crime are punished unequally with the same sentence. However, if we pull back from this claim, it is instead that the blameworthiness in what Kolber calls the same crime varies depending particularly on one’s baseline. Thus, when two offenders of different baselines commit the same crime, there are different amounts of blameworthiness associated with the crime that we are proportioning their harm to – a higher level of blameworthiness is placed on the higher baseline offender, which serves 19 to justify the additional amount of harm that Kolber points out. We can explore the intuition behind this view. Justification of Additional Harm Let’s ponder this inquiry: Is it worse for a poor person to be robbed by a rich person or by a poor person? It is not particularly different in either case from the victim’s eyes since his items are gone regardless of who has them now. However, if we look at the offender, we would, by intuition, judge that it is worse for a poor person to be robbed by a rich person. Why does it seem more reprehensible for a rich person to inflict this harm than for a poor person to commit the crime? It may be because we realize that the rich person is better off than his victim, and for him to weaken someone else to gain benefits on top of what he has already is understood to be greedy, unfair, and immoral. It seems worse for someone in a happy marriage to commit adultery than it is for someone in damaged, near-divorce marriage to cheat. Though both are wrong, we deem it to be more reprehensible if someone at a higher baseline commits the same crime as someone at a lower baseline. This shows that we condemn people of higher baselines for committing crimes more harshly than we do people of lower baselines because people who are better off are at a higher expectation to not take unfair routes to additional advantages when they already have more than others at their disposal. We can understand the reason why a homeless person would try to rob a bank to get out of his destitute circumstances. If a famous actor were to rob a bank to secure money on top of his riches, it is of significantly more moral wrongdoing to commit this same crime. 20 Punishing on the Basis of Moral Wrongdoing This intuition we have extends beyond mere gut, as this type of additional condemnation is put into strict practice within the legal system. Victimless crimes were previously addressed in this paper to point out that offenders within criminal law can be punished strictly on the basis of their moral culpability while inflicting little to no harm to a victim. This evidence can also show the extent to which moral wrongdoings are punished in our current legal systems. In fact, a striking 86% of all criminals in federal prison are offenders of victimless crimes (Suede, 2011). The majority of these are drug instances. No harm was done to any victim, yet over 4 out of every 5 criminals in jail are there strictly on the basis of their moral wrongdoing. We simply cannot deny the impact that punishment on the basis of moral culpability plays in our legal system. Since we see that the additional harm felt by higher baseline offenders is matched with the additional immorality involved in committing such a crime at a higher baseline, this serves to equate harm across offenders. Any variance seen for offender punishment is compensated by the extra moral culpability on the offender as his baseline rises. A question we can raise here that needs continued exploration is to what degree moral wrongdoing increases with baseline? Does one’s culpability increase at the same rate as his baseline? If an offender is 10 points higher than another offender, must he also be 10 points more blameworthy? Perhaps the degree of wrongfulness could increase a half-point for each additional baseline point an offender exceeds another, which would require a sentence that is 5 points harsher. Or, perhaps their wrongfulness requires an additional 20 points worth of harm to double the amount they exceed another? The rate 21 could also be dependent on the specific crime. Battery may increase culpability of higher offenders at a lower rate than robbery would, for example. This inquiry requires deep exploration about the factors in particular crimes that contribute to moral wrongdoing from which to base the degree of wrongfulness relevant to one’s baseline. Nonetheless, it is important to consider that blameworthiness does correlate with offender baseline, and finding out the exact rate of this correlation per crime would help improve our punishment practices. Victim Status and Offender Misery We must also consider victim status when it comes to realizing the effect that a higher baseline has on increasing blameworthiness and due harm. Victim status is most important when it is particularly low relevant to the offender’s status. This explains more concretely why we see more wrongfulness when the rich steal from the poor. Similarly, if an able-bodied young man commits battery against an elderly person in a wheelchair, the nearly opposite statuses of these individuals raise the amount of wrongfulness in the crime. There is less wrongfulness if an able-bodied man were hit by another man at a similar baseline level. The offender is taking an unfair route to gain the advantage he seeks by hitting that person in a more reprehensible manner in the first scenario than in the second. Inflicting the same harm to someone who is more helpless is worse than inflicting that harm on someone who is at least of the same level as the offender. To Kolber’s point, offender baselines do matter in the assessment of harm owed to an offender, but in opposition to what he says, it serves to actually justify the additional 22 harm that is given to higher offenders since there is additional harm in certain crimes due particularly to where the offender’s baseline lies in relation to the victim’s baseline. Victim status can also reveal other important considerations about harm severity. Suppose that a millionaire is walking down the street and passes a homeless man extending his cup out for a donation. The millionaire had always held a grudge against homeless people ever since one of them tricked him into giving $20 toward a meal when the homeless person actually spent the money on cigarettes and two six packs of beer. Having just finished a frustrating day at work from others also taking advantage of his gullibility, the millionaire steals the cup from the homeless man out of spite and runs off. To what degree would we punish the millionaire? Say the cup contained two single dollar bills and three quarters. The harmfulness factor would indicate that we should punish the offender by $2.75-worth of prison time. Is this sufficient to the wrongdoing in the crime? There is surely more wrongdoing that we can see here with malicious intent. However, there is another critical issue that we need to recognize here concerning the variation of victim and offender baseline. This stolen cup filled of money was of significant monetary worth to the homeless man. Even if he had a couple extra coins in his pocket, or even perhaps some bills, we can still imagine that this $2.75 was a large portion of his assets. If the homeless man had a total of $10, the $2.75 decrease was a 27.5% decline from his worth, let alone the grievance and defeat he feels that cause his baseline to further decrease. Should we instead punish the offender with a 27.5%-worth decline from his baseline? Whether or not we can determine these answers now, the importance of considering complexities within victim status is apparent. A difference in offender and 23 victim baseline can play a crucial role in determining the amount of culpability and harmfulness that needs to be inflicted on the offender to achieve proportionate punishment. Another baseline consideration is offender misery, discussed earlier as a mitigating factor, which allows us to judge the baseline of an offender as if it were lower because of past harmful circumstances that the offender experienced in his life. Here, however, we need to question whether the offender's baseline actually is lower because of these life experiences, or if we simply judge it to be in order to provide a sentence that is sensitive to this factor. In either instance, this once again shows that an offender’s culpability and due harm are dependent on his baseline. He is less blameworthy if he has had more misery in his life than he would be if he had not experienced those extenuating circumstances. Our assessment of these baseline factors has evidenced that those of higher levels of wellbeing are more reprehensible for committing the same crime as someone at a lower baseline. Taking an unfair route to an advantage is more immoral when someone already has significant advantages. They should be inflicted with more harm to account for this additional wrongfulness. The gap in harm amounts that Kolber points to for offenders of different baselines is not unjustified. Instead, the varied amount of harm is in fact due to the varied baselines. Culpability trends in the same direction as the offender baseline, and that is accounted for within criminal punishment. Therefore, all of the punishment inflicted on offenders, including the additional harm for offenders of higher baselines, is justified, and 24 we do not have reason to abandon our current punishment practices on the basis that Kolber relies on. Recapping Sections One and Two It must be pointed out that the ideas in Section One and here in Section Two may be exploring opposite propositions. Section One claims that blameworthiness from other factors involved in criminal wrongfulness besides harmfulness do not vary with baseline, while Section Two suggests that blameworthiness does vary with baseline. The contrast of these inquiries is meant to point out that whether we agree or disagree with Kolber's main point that baselines need to affect punishment amounts in criminal law, we will run into problems in either method that disrupt Kolber's argument. If baselines do not affect wrongfulness outside of harmfulness, then we see that the comparative model that only considers harmfulness cannot account for other factors needing to be included in the criminal offender harm calculation. If baselines do affect wrongfulness by correlating with an offender's culpability, then our current punishment practice is inflicting justifiable punishment and there is no need for the comparative model. Through either account, we see that his argument is weakened and has not considered the complexities involved in calculating criminal punishment. 25 SECTION THREE: THE SUBJECTIVE CURRENCY OF HARM We continue to encounter some issues with the claims in Kolber’s argument. The discussions here and within Kolber’s paper rely on his assumption that additional harm exists in criminal punishment. Although I have gone through to prove that if additional harm is present then it is justified, perhaps we must pull back further and question whether or not there even is additional harm in the current punishment model. Are higher baseline offenders punished more severely than lower baseline offenders when they are placed in the same prison condition? Let us explore this by moving forward through Kolber’s paper as he continues to argue for his conclusion. He claims that the retributivist view is weakened for its inability to commit to true proportionality if they do punish comparatively. When the comparative notion is applied to offender harm, Kolber recognizes that there are odd implications that arise within the comparative model that retributivists will likely not wish to accept. This dismissal of comparative assessments would inevitably lead them to rid of their commitment to proportionality and weaken their superiority above consequentialism. However, we will see that proportionality exists within our current sentencing practices through an examination of the very practice that Kolber argues for in his paper. Measuring punishment through the subjective currency will allow equal sentences given under our current model to inflict equal amounts of harm on offenders of different baselines. 26 Subjective vs. Objective Harm Kolber stresses that we must understand whether the currency of harm within prison is either objective, such as deprivations of liberties, or subjective, such as experiential harms. He examines three types of liberties that if deprived would act as an objective harm: liberties-in-fact, granted by the freedoms and restraints that we are physically and psychologically faced with; liberties-under-law, granted by legal freedoms within our jurisdictions; and idealized liberties, granted in an ideal baseline under a normative set of circumstances. He argues that these three are not the only types of harm deprivations we should consider. There are subjective feelings that are tied with these objective deprivations, such as distress from not being able to move as and when one pleases, missing loved ones, etc. We are led inescapably to consider subjective harms that are based on how offenders experience the circumstances that they are placed in. Kolber points out that punishment is precisely aiming to weaken how comfortable a person is with his circumstance by inflicting emotional distress, so only through a subjective account can we properly account for punishment severity. When considering the comparative notion of harm subjectively, which Kolber claims is the most accurate model of calculating punishment severity, he realizes that we may run into some issues that would make this model unattractive in practice. Going through with the comparative notion would mean, for example, that a rich person who commits a crime would have to receive a lesser sentence than a poor person who commits the same crime because the rich person is coming from a higher starting point and would be punished more than the poor person would be if they were both brought down to the 27 same level. We would have to punish the rich person with a lesser sentence than the poor person in order to account for the same level of change in the offenders’ circumstances and inflict harm of the same severity. Suggesting that rich people should get lighter sentences than poor people seems to go against what we would advocate intuitively, but in fact fits in with an accurate account of harm across offenders of equal blameworthiness. Again, it is the change in baselines that we should be concerned with rather than the sentence amount length itself. Kolber claims that we run into the same problem outside of income baselines with two people who differ in the subjective judgments of their circumstances. One contented person who is generally happy would suffer more in the same prison conditions than a dispirited person who is generally sad because the contented person is coming down farther from his initial baseline. Let’s suppose that the contented person’s baseline is at a level 80 while the dispirited person’s baseline is at a 20. Prison conditions subject these offenders down to the same level 5. The person who started out at a higher baseline is receiving more severe punishment than the dispirited person who received a less traumatic change. In order to rid of this variance, we would need to punish in the proper comparative fashion to bring offenders committing the same crimes down the same amount from their baselines. Again, an odd result is that we would need to punish happy people with lighter sentences than sad people, and this may not be an outcome that some punishers would want to support. 28 Recalibration of Baselines As we take another step back from Kolber’s argument and examine his claim that people of different baselines are being punished by disproportionate amounts, we find that this support is actually based on a misled assessment. It is instead the case that we are, in fact, punishing proportionately and bringing offenders of equal blameworthiness down by the same amount. He advocates that we should use the subjective currency of punishment to assess criminal harm, and this opinion is backed back other widely- accepted theories that prove subjective experiences are the most impactful pains within prison life (Flanagan, 1980). If we do, then we will find that the baselines of offenders drop by the same amount when comparing their pre-prison condition and their imprisoned condition within subjective terms. If an optimist’s baseline is at 35 and a pessimist’s baseline is at 25 (all else being equal except for their subjective mindsets) then by bringing them both down to what is supposed to be a harm condition of 10 in jail, the optimist will calibrate higher to 15 and the pessimist will calibrate lower to 5. They were both harmed by 20 when they started at different baselines and were brought down to the same prison conditions. Hedonic Adaptation There are a number of studies within positive psychology that discuss this very phenomenon about subjective mindsets. Hedonic adaptation, which Kolber actually brings up his paper, is a realization that people will quickly return back to their normal baseline even after major gains, such as winning the lottery, or major losses, such as the death of a loved one, occur. In regards to criminal punishment, this theory points out that 29 there is less harm felt in the long run of a prison sentence. After some time, a person will return to feeling back at their normal, pre-harmed baseline. With this in mind, we run the risk of over-calculating amounts of harm if we do not consider this adaptation that occurs throughout offenders’ sentences. Interestingly, Kolber points out this exact explanation of hedonic adaptation as a cautionary that we need to make sure we add this in to the calculations for total harm. However, his realization of this instead provides support for his opposition since proportionality is reached within current practices because of hedonic adaptation. When two people of different baselines are placed in prison, they do not both suddenly switch to having the exact same subjective reaction to their circumstances. Instead, they will end up at those same varied conditions even within prison, which eliminates the additional harm supposedly causing the inequality that Kolber says exists. Studies on Offender Adaptation In studies examining offenders’ adaptation to prison conditions, results from both from psychological examinations and surveys from actual prisoners show that an offender’s pre-prison condition plays an effect on how he will adjust to being incarcerated. The results show that quality of life before prison is positively correlated with the negative circumstances they encounter within prison. Generally, high baseline offenders are better off in prison than low baseline offenders. For example, the quality of life before prison significantly affects levels of happiness and hopelessness within prison (Dhami, Ayton, and Loewenstein, 2007). In this study, psychologists examined 712 federally-sentenced, male prisoners in a variety of security levels within three different 30 California prisons. The offenders' characteristics spread across various sentence lengths, past offenses, current offenses, levels of drug use, ethnicities, amounts of wealth, education levels, and intimate relationships outside of prison. After conducting a four- part survey on the prisoners, the study showed that pre-prison life had a significant effect on their subjective judgment and actions within prison. Quality of life before jail has a positive correlation to an offender’s inclination to react poorly to prison circumstances. People who started with a lower quality of life were charged with more disciplinary infractions while imprisoned, which in turn plays a direct role on their wellbeing within the prison system. The study concluded that pre-prison levels tend to alter the conditions offenders land in once they are in jail, where those with a higher quality of life tend to cope with their circumstances better than offenders of lower circumstances. Further studies focusing specifically on hedonic adaptation have conducted similarly-administered experiments to assess how prisoners adjust to their circumstances in jail. Researchers found that, in multiple forms, offenders return back to their original subjective baselines after some time within prison despite the continued objective deprivations they face. While there is a dramatic subjective drop when the sentence begins, prisoners eventually rise back up to the level that they were at before the drop. For instance, there is significant improvement in an offender’s personality measures and attitude as time progresses in an offender’s sentence (Wormith, 1984). Prisoners have also been found to have lower self-esteem and higher levels of stress at the start of their sentence than they had near the end (Mackenzie and Goodstein, 1985). This proves that offenders develop a method of coping with the experience and eventually find a way to 31 disregard the additional negative effects that the prison circumstances play on their wellbeing. Mental conditions such as dysphoria, in which a person feels intense feelings of discontent and depression, are found to disappear over time as offenders adjust back up to their norm (Zamble, 1992). Other research has also concluded that prisoners do successfully adjust back to their normal subjective mindset when in prison, and those who have maladaptive practices such as emotional disorders, suicide attempts, and prison misbehavior most commonly have these same issues when trying to adapt to circumstances outside of prison as well (Adams, 1992). Even offenders that are meant to be taken as outliers support the notion that offenders’ subjective judgment outside of prison remains with them once they are incarcerated. These studies show that the offender’s baseline will not only dictate their subjective reaction to prison life at a relevant level in accordance with their level outside of jail, but also that the offender will return back to his norm over time. Therefore, the amount of variance that Kolber believes is present to cause disproportionate punishment does not exist. An offender is harmed by an amount that is in direct correlation with his pre-prison condition. When high and low baseline offenders are brought down to the same prison condition, their experiences within prison are subjectively calibrated to a level associated with where they started from. Offenders with different baselines given the same sentence are harmed by the same amounts. Thus, punishment in the current model provides sentences that are equal in practice. This shows significant evidence that additional harm does not exist within in absolute punishment. If we employ the comparative model of punishment, there is no need to worry about having to give rich 32 people lighter sentences than poor people since, given the same sentence, prisoners would self-adjust and experience the same amount of harm. We can see that Kolber has contradictory beliefs when he claims that we do not have proportionate punishment in the current absolute system since his own advocacy for subjective-based baselines is precisely what brings about proportionate punishment and equal harm across offenders. If we were to employ the comparative model of punishment as Kolber wishes, then we would actually end up with unequal harm to offenders given hedonic adaptation. Comparative punishment allows us to manually supply the gap in harm severity for offenders of different baselines. However, once the offenders calibrate, they will be moving even further apart than what their baselines call for. Harm severity is equalized automatically given their different subjective experiences in prison that is in accordance with their baseline level. Manually accounting for this difference using comparative punishment would add the difference on top of what would happen by nature, which would result in unequal amounts of harm. We see that the comparative model administers disproportionate harm while our current model does not. Victim Baseline Calibration A point can be raised in opposition of this view to claim that when offenders calibrate to their baseline level in prison, they end up experiencing less harm than their victims experienced from their baseline drop. There are two ways we can address this concern. First, we must ensure that punishment practices account for this calibration that offenders go through in jail and provide sentences with this in mind. If the wrongfulness of a crime requires an infliction of 60 points of harm, we must ensure that the sentence 33 amount in its entirety totals 60 points of harm. Harm cannot end up being lighter when the sentence is completed as a result of this calibration. Second, we need to realize that the victim recalibrates as well since hedonic adaptation is not unique to prison offenders. Recalibration back to one’s baseline happens in all circumstances, imprisoned or not. If someone enters a room with a disgusting smell, he will eventually become immune to it after lasting some time in the room. Similarly, once someone is overjoyed from buying a brand new house, they become accustomed to it and their subjective judgment of their condition returns back to how it was (Lyubomirsky, Dickerhoof, Boehm, and Sheldon, 2011). These studies see hedonic adaptation as a challenge for gaining happiness and a benefit from being rid of everlasting sorrow. Those who experience a significant harm or a significant gain return back to feeling as they normally did after some time. Therefore, victims of the crimes will also return to their baselines after some time in the same fashion as the offender. If their harms were proportionate, then their calibrations should match. Perhaps, however, the speed or amount at which they calibrate is dependent on the baseline they started from. If the victim and offender differ in baselines, would they calibrate back to their baselines in a different way? This once again raises the importance of considering the difference in victim and offender baseline statuses as discussed in Section 2. Baseline Factors In an attempt to refute this view, Kolber may try to argue that the pre-prison condition that we need to consider is an offender’s immediate circumstances before jail rather than overall subjective mindset in life. It is from that level that the prisoner will 34 experience the dramatic change and is what matters in the comparative calculation for measuring the severity of harm. He points out in his example for The Abducted Drug Dealer that a criminal who happens to be in extreme destitute circumstances before his arrest, such as being locked in a closet for a year, must be punished with a harsher sentence than a drug dealer who was not in those destitute conditions in order to enact the same amount of harm on both offenders of the same crime relative to their pre-prison circumstances. It is concerning to believe, however, that simply because an offender is in one temporary odd condition, it would severely and perhaps arbitrarily impact the punishment that he would be owed. This raises the need for a discussion around the timeline we need to use to determine a prisoner’s baseline. Needed Exploration of Baseline Timelines In Kolber’s Abducted Drug Dealer case, we should not reasonably rely this heavily on timing as a factor for judging how to harm an offender given his subjective experiences. Whether we happen to catch a drug dealer the day he was relaxing on a yacht or when he was hiding in a hole in the ground, it does not seem plausible for us to use these happenstance conditions in our sentencing decisions. We must then determine the most appropriate practice. Should we go back in time just a week ago to judge the baseline of a now destitute offender who is unemployed and saddened by a break-up with his girlfriend that occurred three days ago? Would a few months back be more fitting prior to when the offender quit his job to repair his relationship that was tarnished by him being extremely busy at his six-figure-paying job? Or should we calibrate his baseline to 35 include his condition five years ago when he was a single and struggling unpaid intern at a start-up company trying to make ends meet? We must be able to decide on the timespan we should use to calculate a person’s baseline. Further, should we factor in the temporary wealth that a robber enjoyed after having been homeless for ten years, or would that wealth be double counted within his punishment? We would need to decide here whether we are still punishing someone at a poor baseline or someone who is now at a rich baseline given the money they stole before they were arrested. These types of answers cannot be assumed, as Kolber has, without first having this important discussion on how we will deal with the timing associated with baselines, among other critical details on what other factors to include in these conditions. Kolber would need to take on this task before he could rely on instances like the Abducted Drug Dealer that would require harsher sentences based on one’s imminent conditions, when in fact we first need to decide by what particular baseline level we need to use to harm the offender. Kolber cannot ignore the need to explore these defining factors if he aims to heighten the importance of baselines, particularly because the consideration of baseline change introduces complexities that significantly threaten the soundness of his argument. 36 CONCLUSION After examining Kolber’s argument, we have discovered answers to the questions posed at the start of our discussion: 1. The comparative model of punishment cannot account for all of the factors involved in calculating criminal punishment. Other factors of significant importance within the harm calculation involve conditions that are unable to be assessed by the comparative model. 2. The additional harm that Kolber claims exists in the current method of punishment can be justified. Offenders of higher baseline are more culpable than offenders of lower baseline and are punished more to account for this additional blameworthiness. 3. This additional harm may not even be present in criminal punishment. Offenders adapt to prison circumstances in a manner that recalibrates each offender to a level in accordance with his baseline, equating harm amounts across offenders. We see that Kolber’s argument is now weakened within several areas of his paper. First, his argument for employing the comparative model of punishment is defective when we realize that criminal law does not align with other areas of law that punish comparatively. The comparative model is unable to proportion factors that are not functions of a person’s baseline as wrongfulness within criminal law requires. We cannot accept Kolber’s main proposal to use the comparative notion of punishment because it is an inadequate method for assessing criminal harm. Second, we realize that the additional harm Kolber points 37 out may be justified, contrary to his belief, due to the additional moral culpability placed on higher baseline offenders. People with additional advantages at hand are denounced more than someone at a lower baseline is for committing the same moral wrongdoings. Since we punish on the basis of immorality to a significant extent in our legal system, as seen with victimless crimes, we must realize the additional culpability of those who took an unfair route toward advantages in spite of the many advantages that they already had. Third, when we consider the effects of punishment in the way that Kolber advocates, we end up with proportionate punishment without using the comparative model. Since harm must be measured through subjective currencies to properly account for the deprivations they experience while imprisoned, we find that people will return to the same subjective mindset in prison that correlates with their baseline outside of jail. Harm amounts calibrate to be the same across offenders as each individual person adapts back to their original mindset. We do achieve proportionate punishment when we punish through subjective currencies without using the comparative model, contrary to what Kolber had claimed. While Kolber did well to show the importance of using baselines as a consideration for accurate harm in punishment, there may be a better method for understanding baselines in ways that Kolber has not considered, and he must address these areas and rid of his discrepancies in order to move forward with his claims as valid. Further discussion must consider the ways that baselines are important in criminal punishment and propose best practices for administering prison sentences with baselines in mind. Perhaps baselines matter most to administer individual punishments, but it does not follow from that point that baseline considerations cause disproportionate 38 punishments in the current model. What else must we consider in order ensure we are achieving proportionality using baselines? For example, which factors of life should we use to determine one’s baseline, and how heavily should each of the variables be weighed in the determination? To address a practical concern, what other worries can hedonic adaptation introduce when administering equal harm amounts within punishment sentencing? Do offenders at different baselines recalibrate at different speeds that could affect our ability to punish equally? More critically, how can we ensure that the victim and offender are harmed proportionately among the complexities that come with the recalibration of both of their baselines? Further, what should we do in instances where the harm owed to an offender would alter his baseline more significantly than the victim’s baseline was changed? Does it matter that a lower baseline offender may be harmed more severely if his victim started out at a higher baseline, since a small amount of harm to a victim who started out high would be much more impactful if inflicted on the life of a low baseline offender? As the inspiration for the discussions within this paper and the inquiries that we need to continue to explore, Kolber has done a terrific job to open the path for scrutinizing practices in criminal law to ensure that we are achieving equal, justified, and proportionate punishment. He has successfully introduced an opposition to our intuitive thoughts about the way harm is inflicted on offenders, which invites continued exploration about the punishment practices within our legal system. 39 BIBLIOGRAPHY Adams, Kenneth. "Adjusting to Prison Life." Crime and Justice 16 (1992): 275-359. Web. Dhami, Mandeep K., Peter Ayton, and George Loewenstein. "Adaptation to Imprisonment: Indigenous or Imported?" Criminal Justice and Behavior (2007). American Association for Correctional and Forensic Psychology. Web. Flanagan, Timothy J. "The Pains of Long-term Imprisonment." British Journal of Criminology 20 (1980): 148-56. Web. Kahneman, Daniel, Ed Diener, and Norbert Schwarz. Well-being: The Foundations of Hedonic Psychology. New York: Russell Sage Foundation, 1999. Print. Kolber, Adam J. "The Comparative Nature of Punishment." Boston Law Review 89 (2009): 1565. Web. Lyubomirsky, Sonja, Rene Dickerhoof, Julia Boehm, and Kennon Sheldon. "Becoming Happier Takes Both a Will and a Proper Way: An Experimental Longitudinal Intervention to Boost Well-being." Emotion 11.2 (2011): 391-402. American Psychological Association. Web. Mackenzie, Doris L. and Lynne Goodstein. "Long Term Impacts and Characteristics of Long Term Offenders." British Journal of Psychiatry 113 (1985): 1057-067. Web. Suede, Michael. "Victimless Crime Constitutes 86% of The Federal Prison Population." Libertarian News. 29 Sept. 2011. Web. 09 Jan. 2012. <http://www.libertariannews.org/2011/09/29/victimless-crime-constitutes-86-of- the-american-prison-population/>. Wormith, J.S. "The Controversy Over The Effects of Long-term Imprisonment." Canadian Journal of Criminology 26 (1984): 423-37. Web. Zamble, Edward "Behavior and Adaptation in Long-Term Prison Inmates: Descriptive Longitudinal Results." Criminal Justice and Behavior 17 (1992): 53-70. Web.

Abstract (if available)

Abstract As a strong contributor to the conversation about proportionality within the criminal justice system, Adam Kolber makes a compelling argument in his paper, The Comparative Nature of Punishment, to dismiss the common belief that the same prison sentence punishes offenders of the same crime by equal severities. He suggests that an offender with a high baseline, a level to designate one’s quality of life, would be punished more severely if he were brought down to the same prison conditions as someone who started with a lower baseline. Baselines must be considered in order to ensure we are harming offenders proportionately. As Kolber concedes, however, odd results will follow when applying this theory in practice. If a millionaire and a homeless person committed the same crime, we would have to punish the millionaire by moving him from his penthouse loft and imprisoning him in a small condo on the sixth floor while punishing the homeless person by moving him from the street’s back alley and imprisoning him in a roach-infested cell in a basement. Punishers should not be forced to abide by these strange guidelines in order to reach proportionality as Kolber’s argument suggests. In this paper, I present three opposing views to Kolber’s argument: 1) Punishing offenders by only regarding their baseline does not account for other factors involved within the calculation of criminal punishment, 2) the additional harm suffered by higher baseline offenders is justified within the current punishment model, and 3) this additional harm may not even be present within current practices. A critical discussion of proportionality issues in criminal punishment follows.

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Responsibility and rights: a search for a principled distinction between criminal law and tort law

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Creator Amankonah, Jacquelle Ofori (author)

Core Title Crime and punishment: examining proportionality issues within criminal law

School College of Letters, Arts and Sciences

Degree Master of Arts

Degree Program Philosophy and Law

Publication Date 04/16/2012

Defense Date 03/27/2012

Publisher Los Angeles, California (original), University of Southern California (original), University of Southern California. Libraries (digital)

Tag base line,baseline,Crime,criminal,equal,equality,harm,Jail,jail condition,Law,legal,legal system,OAI-PMH Harvest,offender,Prison,prison condition,proportionality,punishers,punishment,Quality of life,rights,Sentencing

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