Dan Markel, Chad Flanders, David Gray

Beyond Experience: Getting Retributive Justice Right

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 reentry 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). 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 not only principally unpersuaded as to the conceptual and normative responses, but we 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.