Should Prison Sentences Take into Account the “Unintentional Harms” Associated with Prison Life?
Theories of punishment typically focus on the “letter” of the punishment — thus, a five-year prison sentence is a five-year prison sentence. But subjectively, five years in a minimum-security prison with weekend furloughs would be a very different experience than five years held in solitary confinement in an isolated supermax. Moreover, even within the same prison, each inmate will experience a five-year sentence differently — even if state law isn’t intentionally designed to treat inmates differently. Should sentencing decisions take into account factors beyond just the “intended” punishment? What about foreseeable “side effects” of punishment, such as reduced ability to see one’s family, or a particular inmate’s lack of access to needed drug treatment?
Even though conditions vary substantially among prisons, we generally ignore these variations when assessing punishment severity. We fetishistically focus on the length of prison terms, even though sentence severity cannot just be a function of time. [...]
Moreover, even identical prison facilities have very different effects on prisoners. One inmate may become extremely distressed, while another thrives in the very same facility. Though we do not necessarily intend to cause such distress, bad experiences are clearly foreseen side effects of incarceration that vary considerably from inmate to inmate. Nevertheless, we generally treat inmates as receiving punishments of equal severity no matter how we expect them to experience prison life.
Professor Kolber argues that “in order to impose just punishment, the state must measure the unintentional harms associated with punishment that it inflicts or expects to inflict and take those measurements into account at sentencing.” You can download the paper here, and read Professor Doug Berman’s take on it over at Sentencing Law & Policy.