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The Comparative Nature of Punishment


Adam J. Kolber


Brooklyn Law School

March 4, 2009

Boston University Law Review, Vol. 89, p. 1565, December 2009
San Diego Legal Studies Paper No. 09-005

Abstract:     
In tort and contract law, we calculate the harm a defendant caused a plaintiff by examining the plaintiff’s condition after an injury relative to his baseline condition. When we consider the severity of prison sentences, however, we usually ignore offenders’ baseline conditions. We deem inmates as receiving equal punishments when they are incarcerated for the same period of time under the same conditions, even though incarceration does not change their situations equally (unless they started out in identical circumstances). It is the amount by which we change offenders’ circumstances that determines the severity of their sentences.

We calculate the severity of some punishments, like fines, comparatively. Fines specify an amount by which to change an offender’s wealth relative to his baseline. We never use fines to equalize the net worth of offenders, but we do use prison to equalize the liberties of prison inmates.

When we recognize the comparative nature of punishment, we see that, by putting two equally blameworthy offenders in prison for equal durations, the offender with the better baseline condition is likely punished more severely than the offender with the worse baseline condition. We must attend to the differences in their baselines or else we will fail to justify some of the harsh treatment that we knowingly impose. If we insist on giving both of these offenders equal prison terms, we cannot justify doing so on the grounds of proportional punishment.

Number of Pages in PDF File: 44

Keywords: Punishment, Jurisprudence, Retributivism, Consequentialism

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Date posted: October 8, 2009 ; Last revised: July 16, 2010

Suggested Citation

Kolber, Adam J., The Comparative Nature of Punishment (March 4, 2009). Boston University Law Review, Vol. 89, p. 1565, December 2009; San Diego Legal Studies Paper No. 09-005. Available at SSRN: http://ssrn.com/abstract=1266158

Contact Information

Adam Jason Kolber (Contact Author)
Brooklyn Law School ( email )
250 Joralemon Street
Brooklyn, NY 11201
United States

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