The Comparative Nature of Punishment

44 Pages Posted: 8 Oct 2009 Last revised: 16 Jul 2010

See all articles by Adam J. Kolber

Adam J. Kolber

Brooklyn Law School; NYU School of Law

Date Written: March 4, 2009

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.

Keywords: Punishment, Jurisprudence, Retributivism, Consequentialism

Suggested Citation

Kolber, Adam Jason, 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: https://ssrn.com/abstract=1266158

Adam Jason Kolber (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

NYU School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
491
rank
55,327
Abstract Views
3,605
PlumX Metrics