“The Comparative Nature of Punishment”

The title of this post is the title of this new piece by Adam Kolber now available through SSRN.  Here is the abstract:

Suppose we punished people by forced poverty. Instead of a traditional dollar fine, we would limit offenders’ personal possessions to the bare essentials. For a one-year period of forced poverty, a billionaire would lose access to his billions, while a person with just the bare essentials would lose nothing.  Clearly, a year of forced poverty has a disproportionally severe impact on the billionaire.

Now suppose instead that the billionaire and the poor person are sentenced to prison for a year. In prison, we will, in fact, punish them with forced poverty by limiting their personal possessions to just the bare essentials.  Yet many people treat such sentences as equal because they have the same duration.  How can forced poverty be an unfair stand-alone punishment but a fair one when combined with imprisonment?

The answer is that the punishment is unfair in both scenarios.  We mistakenly evaluate the severity of prison by measuring only the condition that prison imposes on offenders, without looking at offenders’ baseline conditions.  This absolutist approach to punishment severity ignores half of what matters about punishment, because it fails to recognize that punishment is fundamentally comparative in nature. In order to judge punishment severity properly, I argue, we must compare an offender’s unpunished, baseline condition to his worse, punished condition.  The billionaire and the poor person differ in their baseline wealth, but as I explain, wealth is just one of many ways in which offenders’ baselines differ.  Proper recognition of the comparative nature of punishment requires us to either dramatically change our sentencing practices to take baselines into account or give up, in large measure, on the goal of proportional punishment.

Looks like another provocative and important piece on punishment theory from Professor Kolber.