Retribution and the Experience of Punishment

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does - must therefore confront the implications of hedonic adaptation. Moreover, the unadaptable negativity of post-prison life which is caused by the experience of imprisonment results in punishments that go on far longer than is typically assumed. Objectivist retributive theories that fail to incorporate these facts risk creating grossly excessive punishments. Certain retributivists have disputed the claim that adaptation is important to punishment theory, but their arguments are unavailing

Happiness and Punishment

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings\u27 ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by even short periods of incarceration. These twin phenomena significantly disrupt efforts to attain proportionality between crime and punishment and to achieve effective marginal deterrence. Hedonic psychology thus threatens to upend conventional conceptions of punishment and requires retributivists and utilitarians to find novel methods of calibrating traditional punitive sanctions if they are to maintain the foundations upon which punishment theory rests

'Just’ punishment? Offenders’ views on the meaning and severity of punishment

In England and Wales, ‘punishment’ is a central element of criminal justice. What punishment entails exactly, however, and how it relates to the other aims of sentencing (crime reduction, rehabilitation, public protection and reparation), remains contested. This article outlines different conceptualizations of punishment and explores to what extent offenders subscribe to these perspectives. The analysis is supported by findings from two empirical studies on the subjective experiences of imprisonment and probation, respectively. Semi-structured interviews were conducted with 15 male and 15 female prisoners and seven male and two female probationers. Two primary conceptualizations of punishment were identified: ‘punishment as deprivation of liberty’ and ‘punishment as hard treatment’. The comparative subjective severity of different sentences and the collateral (unintended) consequences of punishment are also discussed. It is shown that there are large individual differences in the interpretation and subjective experience of punishment, which has implications for the concept of retributive proportionality, as well as the function of punishment more generally