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?
Readers may be interested in this new paper from Professor Adam Kolber at Brooklyn Law School, which considers these types of questions. Here’s an excerpt from the introduction:
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.
Prison Law Blog 
Managing or reducing the “foreseeable side-effects of punishment” has to be done at the correctional level, not the judicial level. Regardless of judicial decision, the institutional strategy has to be supportive of re-entry, and the individual prisoners have to have access to and be motivated toward re-entry programs. On a side-note, a re-entry plan has to include post-incarceration support, such as mentoring and community involvement.
Project Regeneration (@ProRegeneration)
November 13, 2011 at 12:30 pm
Managing or reducing the “foreseeable side-effects of punishment” has to be done at the correctional level, not the judicial level. Regardless of judicial decision, the institutional strategy has to be supportive of re-entry, and the individual prisoners have to have access to and be motivated toward re-entry programs. On a side-note, a re-entry plan has to include post-incarceration support, such as mentoring and community involvement.
Project Regeneration
November 13, 2011 at 12:31 pm
I couldn’t agree more with Project Regeneration’s post. Judicially, however, there might be some work that can be done. As judges are encouraged to take regional differences into account when handing out sentences (i.e: a drunk driving sentence in one place may be different that what is considered normal in another place) this is the start of individualized treatment.
The other side of this debate would point to strict sentencing guidelines that use a grid-like system to determine sentence severity. This seems to assume that a formula, if detailed enough, could take care of all the needs of a) the community b) the victim(s) and c) the offender. This seems overly simplistic. As such, I agree, the key to taking into account side effects of punishment begins with the judiciary, funneling the offender into the right correctional setting, and then up to the staff there to design a rehabilitation and reintegration plan that best suits the needs of all involved, and, as noted, post-custodial care is very important. thanks for an interesting post!
neverfillthebucket
November 14, 2011 at 8:09 am
“As judges are encouraged to take regional differences into account when handing out sentences… ” Yes, there is that leverage there and rightly so. But there is a danger in that too, just look at the current petition at Whitehouse, http://wh.gov/jmh and see for yourselves how it turns out when Rule of Law is misinterpreted.
Lal Vishaal
December 17, 2011 at 11:01 am