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Beyond Experience: Getting Retributive Justice Right


Dan Markel


Florida State University College of Law

Chad Flanders


Saint Louis University - School of Law

David C. Gray


University of Maryland-Francis King Carey School of Law

January 13, 2011

California Law Review, Vol. 99, No. 2, April 2011
FSU College of Law, Public Law Research Paper No. 484
U of Maryland Legal Studies Research Paper No. 2011-6

Abstract:     
How central should hedonic adaptation be to the establishment of sentencing policy?

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release experiences as part of the suffering the state imposes as punishment.

In subsequent articles, we challenged BBM’s arguments (principally from the perspective of retributive justice) -- see below for SSRN links. The fundamental issue between BBM and us is whether "punishment" should be defined, measured, and justified according to the subjective negative experiences of those who are punished, an approach we refer to as "subjectivism," or whether the more compelling approach is to define and justify punishment, more or less, in objective terms such that the amount need not vary based on experiences of offenders alone.

In their responsive essay, "Retribution and the Experience of Punishment," BBM responded to our challenges. This essay of ours now assesses the impact of their responses, again from the perspective of retributive justice. We remain unpersuaded by their conceptual and normative responses. We also use this essay to explain further the wrong turns associated with BBM's decision to endorse subjectivist concerns as the principal measure and justification for the infliction of retributive punishment.

Markel and Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Punishment, http://papers.ssrn.com/abstract=1587886

Gray, Punishment as Suffering, http://ssrn.com/abstract=1573600

BBM, Retribution and the Experience of Punishment, http://ssrn.com/abstract=1692921

Number of Pages in PDF File: 24

Keywords: retributive justice, hedonic adaptation, punishment, criminal law, sentencing

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Date posted: January 14, 2011 ; Last revised: January 26, 2012

Suggested Citation

Markel, Dan and Flanders, Chad and Gray, David C., Beyond Experience: Getting Retributive Justice Right (January 13, 2011). California Law Review, Vol. 99, No. 2, April 2011; FSU College of Law, Public Law Research Paper No. 484; U of Maryland Legal Studies Research Paper No. 2011-6. Available at SSRN: http://ssrn.com/abstract=1739946

Contact Information

Dan Markel (Contact Author)
Florida State University College of Law ( email )
425 W. Jefferson Street
Tallahassee, FL 32306
United States
HOME PAGE: http://www.danmarkel.com/
Chad Flanders
Saint Louis University - School of Law ( email )
100 N. Tucker Blvd.
St. Louis, MO 63108
United States

David C. Gray
University of Maryland-Francis King Carey School of Law ( email )
500 West Baltimore Street
Baltimore, MD 21201
United States
410-706-5986 (Phone)
HOME PAGE: http://www.law.umaryland.edu/faculty/profiles/faculty.html?facultynum=598
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