Vulnerability and just desert: a theory of sentencing and mental illness.

• Author: Johnston, E. Lea
• Position: I. Introduction through II. Heightened Vulnerability of Prisoners With Serious Mental Illnesses, p. 147-183

TABLE OF CONTENTS I. INTRODUCTION II. HEIGHTENED VULNERABILITY OF PRISONERS WITH SERIOUS MENTAL ILLNESSES A. Increased Likelihood of Physical Victimization B. Increased Likelihood of Sexual Victimization C. Higher Incidence of Disciplinary Infraction D. Prevalence of and Experience in Solitary Confinement III. HOW VULNERABILITY MAY AFFECT THE DISTRIBUTION OF DESERVED PUNISHMENT A. "Punishment," Risk of Serious Harm, and Penal Severity 1. Additional Support for Conceptualizing Certain Foreseeable Risks of Harm as Punishment 2. Consideration of Prison Violence B. Just Desert Theory's Accommodation of Vulnerability 1. Inhumane Treatment and Cardinal Proportionality 2. Alternative Penalties and the Living Standard Analysis 3. The Equal-Impact Principle and Carceral Discounts IV. CONCLUDING THOUGHTS I. INTRODUCTION

Criminal punishment involves hard treatment. Imagine a typical offender, without major mental health problems, (1) sentenced to a term of twelve years in prison for simple robbery. (2) He enters prison nervous, but determined to protect his physical and emotional well-being. Initially, he keeps to himself and appraises his new environment. He soon discerns the hierarchy among prisoners, the benefits and risks of membership in various groups, and the dynamic between prisoners and guards. (3) He learns both the disciplinary rules imposed by the prison and, through observation and a few well-placed questions, the unwritten rules among prisoners. He pays careful attention to what conduct and speech will constitute a violation of these rules as well as the consequences that will follow. He learns how to put up a tough front, avert danger, and respond to confrontations in a way that will deter future acts of aggression. (4) He forges alliances. He develops a routine. In a nutshell, he copes. After a period of a few months, (5) he adjusts. He learns to live with his sentence. (6)

Now imagine an offender--serving the same sentence for the same crime, committed with the same degree of culpability--with an Axis I disorder (7) such as schizophrenia. Seriously ill yet declared competent, (8) he enters prison in the midst of delusions: he has been found, and "they" have gotten him. Unsure of whom to trust, he keeps to himself, avoids eye contact, and mutters to himself anxiously. Because his thoughts and speech are disorganized, he obsessively repeats himself, uses fabricated words, and delivers nonsensical statements as though they were commonplace observations. He soon earns the nickname "Bug"--prison slang for a mentally ill inmate (9)--and becomes a target for physical and sexual abuse. (10) Feeling alienated and distressed, he withdraws to his cell. His isolation morphs into personal neglect, and guards respond by disciplining him for hygiene violations and refusals to leave his cell. After weeks of silent abuse, he strikes another prisoner and lands in solitary confinement. The mental strain of isolation, enforced boredom, and the constant illumination of his cell propel him into a deep depression and lead to a psychotic breakdown. He serves most of his prison term disoriented, alone, and suffering. (11)

These stylized examples illustrate how two sentences of the same duration may be equal in name only. In many ways, these individuals' sentences, as experienced, have vastly different punitive bites. These experiential differences are the predictable result of two distinct phenomena. First, confining individuals with obvious cognitive and behavioral deficits in close quarters with (and without adequate protection from) large numbers of antisocial persons with excess time and few productive activities results in bullying and predation. Recent studies demonstrate that, just as individuals with major mental disorders are vulnerable to victimization in the outside world, (12) they are more susceptible than non-ill persons to physical and sexual assault in prison. (13) Second, persons with serious mental illnesses often lack the skills and abilities to cope successfully within prison. Strict conformance with prison rules can be very difficult for an individual with cognitive and behavioral limitations, and studies confirm that prisoners with serious mental illnesses are more likely than non-disordered prisoners to accrue disciplinary violations. (14) In response, prison officials often punish prisoners with major mental disorders through solitary confinement, (15) where they are especially susceptible to decompensation, psychotic breaks, and suicide ideation. (16)

This Article argues that both aspects of vulnerability--vulnerability to predation by other offenders and prison guards, as well as vulnerability to mental decompensation from an inability to cope within the structure of prison--are morally important and, if present above a certain threshold, should factor into sentencing to effectuate proportionate punishment. Indeed, only by taking these sources of vulnerability into account and adjusting sentences accordingly will individuals with serious mental illnesses be proportionately punished for their wrongdoing, relative to other offenders. (17) In other words, vulnerability from mental illness should factor into a court's evaluation of the severity of a contemplated penalty to ensure that an offender is not overpunished. Only by treating an offender differently (i.e., by recognizing his susceptibility to serious harm) will he be treated equally (i.e., similarly to those without major mental disorders who are equally blameworthy). (18)

At the moment of sentencing, a judge will likely be aware of an offender's mental disorder (19) and may be cognizant of the dangers that prison poses to the offender in light of his illness. (20) However, depending on the jurisdiction, the judge may be unable to tailor the offender's sentence so that it will not carry unduly harsh consequences. Some, but not all, states recognize vulnerability to harm in prison as a mitigating factor in their statutory sentencing frameworks or sentencing guidelines. (21) Although judges may retain the discretion to depart from a presumptive sentence due to compelling circumstances, (22) a state's failure to enumerate vulnerability due to a mental condition as a mitigating factor might suggest an inability to depart on this basis. This is a particular concern where a state designates mental illness as a mitigating factor when it reduces an offender's culpability. (23) With limited discretion to depart from a presumptive sentence, imprisonment may appear to be the only penalty available to a judge when sentencing a vulnerable, seriously disordered offender, especially for a serious crime. Possibly beneficial alternative sanctions, such as home detention with electronic supervision, community service orders, treatment or residential orders, fines, or probation, may be out of reach.

Legislatures' and sentencing commissions' reluctance to authorize judges to factor vulnerability into sentencing reflects, and is reinforced by, some punishment theorists' stance on the relationship of vulnerability to punishment. Since the dismantling of rehabilitation as the dominant punishment theory in the late twentieth century, (24) retributive theories of punishment have enjoyed a resurgence in popularity. (25) Today, retributive principles animate the sentencing codes of many jurisdictions. (26) A common tenet of retributive theory posits that punishment should be proportionate: its severity should reflect the offender's culpability and the harm caused by his criminal act. (27) A broad chorus of philosophers and legal scholars--joined recently by Professors Dan Markel, Chad Flanders, and David Gray (28)--has asserted that punishment consists only of deprivations or unpleasant conditions intentionally imposed and authorized by a lawful sentencing authority. (29) Because punishment is limited to intentional hardships, abuse and mental deterioration unintended by a sentencing judge (even if foreseen by him) (30) do not constitute punishment. (31) Thus, according to these theorists, while the foreseeable vulnerability of certain individuals to suffering in prison is an unfortunate reality that perhaps merits attention by "penal technologists," (32) judges are not obligated to factor this vulnerability into sentencing in order to effectuate proportionate punishment. (33)

In contrast, Professor Adam Kolber--whose theories have been expanded upon by Professors John Bronsteen, Christopher Buccafusco, and Jonathan Masur (34)--has eloquently argued that, if an offender's punishment is to be proportionate to his crime, then a judge should take into account the suffering the defendant is likely to...