Invisible Prisons

60 Pages Posted: 7 Dec 2020 Last revised: 19 Dec 2020

See all articles by Eve Hanan

Eve Hanan

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: November 23, 2020

Abstract

Modern punishment theory is based on an inadequate conceptualization of the severity of incarceration. While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty. Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing. This lack of official attention to how prison is experienced by incarcerated people is one of the drivers of mass incarceration.

This Article is the first scholarly work to analyze the weaknesses of punishment theory using a new and flourishing branch of political philosophy: epistemic injustice theory. The theory posits that disfavored social groups are excluded from contributing information about their experience that should be relevant to policy decisions. Epistemic injustice theory can be applied to analyze why incarcerated people’s accounts of prison’s cruelties are ignored or discounted in punishment decisions. As a disfavored group, prisoner accounts of prison’s harshness are discredited. As a result, sentencing decisions are made with only the thinnest understanding of the punishment being imposed — number of years of lost liberty — and with no accounting for the actual impact of incarceration on the person sentenced.

Applying the framework of epistemic injustice to explore the thinness of punishment theory serves more than a descriptive function. It also forms the basis for concrete recommendations to improve sentencing policy and practice. To this end, the Article suggests (1) how sentencing authorities can exercise epistemic responsibility in punishment decisions; (2) how incarcerated people can participate in knowledge-creation; and (3) how the problem of variability of prison conditions can be accounted for in sentencing.

Keywords: sentencing, criminal, justice, crime, punishment, prison, incarceration, epistemology, prisoners, judging, proportionality, criminal law, criminal procedure

JEL Classification: K14, K29, K10

Suggested Citation

Hanan, Eve, Invisible Prisons (November 23, 2020). 54 U.C. Davis L. Rev. 1185 (2020), Available at SSRN: https://ssrn.com/abstract=3736374

Eve Hanan (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

HOME PAGE: https://law.unlv.edu/faculty/eve-hanan

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