Wednesday, February 9, 2011

How Should We Punish Criminals?

If two people commit the same crime, should they receive different punishments? The justice system has wrestled with that question for thousands of years. I thought Slate came out with an interesting article this week which suggested that people should be punished differently based on how they experience punishment.

The story came from an incident in the Netherlands where a large man complained that his imprisonment in a small cell constituted cruel and unusual punishment. The author then goes on to cite the beliefs of a law professor who believes that subjective experiences of punishment should help determine sentences. The system would work something like this: one man who is resilient and would fare well in prison gets five years for a crime, while another man who is less resilient and would fare poorly might get three years even though he committed the same crime. The idea is that three years for the less resilient man might be the same as five for the more resilient one.

There is a certain logic to this line of reasoning. After all, we do give people different punishments for the same crime. For example, we might punish a first time offender more leniently. Or we may say that out of two people who committed a given crime, one had more mitigating factors that merit a lesser punishment. We give different punishments based upon intent. One man who commits a premeditated murder may get the death penalty. But another who killed in the heat of passion would likely get a significant prison sentence instead.

Still, there are considerable problems with punishing differently based upon how different
people experience their sentences. First, such a system would invariably run into practical difficulties. How would we determine how people actually experience punishment? There would always be a great incentive to pretend that an environment is harsh, or that going to prison is particularly awful. In fact, I’d predict that if we did take into account how people experience punishment when meting out sentences, pretty much every convicted criminal would make himself out to be unfit for prison. In addition, although some people might initially have a tougher time adapting to prison, perhaps they would adapt and not actually have a stronger reaction to the vast majority of their sentences.

I suspect courts would turn to psychologists and psychiatrists to distinguish between fakers and those with real problems. Who would likely be savvy enough to fool a psychiatrist, or hire one to put in a favorable evaluation? The wealthy of course. Moreover, it is perfectly conceivable that the wealthy may actually have the hardest time adapting to prison. They are used to a life of luxury on the outside and being at the top of social pecking order. They have few or no friends who have been to prison. Having to wear orange jumpsuits and eat lackluster (at best) food would be quite the shock. Almost assuredly, it is harder to go from a mansion to prison than it is to go from the projects to prison.

And so that raises the very real specter that wealthy people would systematically receive shorter prison sentences. Of course, in many cases they already do. But this would exacerbate the problem. A justice system that is perceived as favoring the wealthy and punishing the poor unduly would not easily inspire confidence from the average American. So that raises another question: assuming taking experiences into account could be done fairly, which is more important: real fairness or perceived fairness?