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

• Author: Johnston, E. Lea
• Position: III. How Vulnerability May Affect the Distribution of Deserved Punishment through IV. Concluding Thoughts, with footnotes, p. 183-229

3. HOW VULNERABILITY MAY AFFECT THE DISTRIBUTION OF DESERVED PUNISHMENT

   While philosophers, scholars, and policymakers have argued for centuries over the proper justification for state-imposed punishment, less attention has been paid to theories governing the allocation of punishment (177) Critically, the principles that justify the power of the state to impose punishment may differ from those that control the distribution of punishment--the type and quantity of punishment the state should order a particular offender to suffer for a particular crime relative to the penalties other offenders should receive for their offenses. (178) Given the great variety and sheer number of offenses and offender characteristics, and the competing norms at stake, elucidating a defensible distributive theory is a difficult question of tremendous practical significance. (179)

   There are numerous strands of retributivism, (180) but one dominant viewpoint holds that state-imposed punishment serves to express blame or censure, (181) Professor Joel Feinberg first observed that punishment has a denunciatory aspect: "[P]unishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing authority himself or of those 'in whose name' the punishment is inflicted." (182) While few would disagree with this descriptive account, more controversial has been some scholars' assertion that the distribution of punishment can be justified as a means of expressing a certain quantum of censure. (183) Modern desert theorists have distinguished between justifying the censure of criminals and justifying the imposition of the hard treatment typically inherent in state punishment. (184) According to some expressive perspectives, the hard treatment inherent in a criminal sanction should reflect the degree of censure appropriate for an offender's blameworthiness. (185) This viewpoint inspired the development of just desert theory, which rose to prominence in the late 1970s as a means of curtailing sentencing discretion and bounding the state's coercive power over offenders. (186)

   Just desert theory, which has been propounded most thoroughly and effectively by Professor Andrew von Hirsch, (187) purports to allocate punishment according to a proportionality equation involving culpability, seriousness of harm, and severity of penalty. (188) A chief aim of desert theory is to translate retributivism's general call for just punishment into a workable scheme to guide sentencing policy and individual sentencing decisions. (189) Desert theory gives "conceptions of justice a central role in sentencing policy" through the mechanism of proportionality, which is intended to ensure that penal sanctions fairly reflect the culpability of an offender and the harmfulness of his offense. (190) One especially relevant concern of desert theorists is whether, and how, to take into account the differential impact of certain penalties on vulnerable populations of offenders. (191) Desert theory, in light of its prominence and explicit aim to determine the proper amount of punishment in individual cases, should inform the current debate over retributivism's accommodation of foreseeable risk of harm.

   As will be explained in Part III.B, just desert theory measures a penalty's severity by how the sanction typically affects an offender's interests and quality of life, from the perspective of the typical offender. (192) Given desert theory's focus on deprivations as typically experienced by offenders (as opposed to considering only those hardships intended by a sentencing authority), the theory appears to rely upon an understanding of punishment broad enough to encompass at least foreseeable, substantial risks of serious harm, proximately caused by the state in the context of incarceration. (193) This appears especially true for one strand of desert theory--that developing and applying the "equal-impact principle"--which is premised upon a recognition that particular sanctions typically pose significant and foreseeable (but presumably unintended) hardships for offenders with certain handicaps. (194) For that reason this Article will stipulate to and partially defend a definition of punishment ample enough to include foreseeable, substantial risks of serious harm that is proximately caused by the state. (195) Recently scholars have debated whether punishment should include foreseeable risks of harm and from whose perspective the severity of a penalty should be measured. (196) Offering a full defense of a particular definition or theory of punishment is beyond the scope of this Article, but the following section will highlight some of the main arguments in favor of extending punishment beyond intentional deprivations as well as offer additional support, derived from an expressive view of punishment, for why evaluation of punishment severity for purposes of sentencing should include foreseeable, substantial risks of serious harm that is proximately caused by the state in the context of incarceration.

   A. "PUNISHMENT," RISK OF SERIOUS HARM, AND PENAL SEVERITY

   Criminal punishment is, broadly speaking, the state's imposition of a typically unpleasant condition on an individual in response to that individual's violation of a legal rule. (197) Traditionally, philosophers and legal scholars have defined punishment as consisting only of hardships or deprivations intended and authorized by a legitimate sentencing authority. (198) Recently, Professors Dan Markel, Chad Flanders, and David Gray have defended a similar conception of punishment. (199) Under this formulation, the kinds of experience described in Part II--physical and sexual assault by inmates and prison guards, and mental deterioration from extended stints of solitary confinement--would not constitute punishment. Physical and sexual assault are both unlawful and are unintended by a sentencing authority. If these harms fall outside the realm of punishment, then a sentencing judge may be under no obligation to consider the likelihood of their occurrence when meting out proportionate punishment. (200)

   Challenging that viewpoint, a number of scholars have recently stressed that the state should be morally responsible for the foreseeable results of its actions, and some have argued that assessments of a sanction's severity, for purposes of sentencing, should therefore include foreseeable risks of harm. (201) As Professor Alice Ristroph has pointed out, punishment is not designed and meted out by a single actor with a single intent, but rather consists of a set of practices, with one practice triggering the next. (202) Given the numerous and potentially conflicting intentions involved in imposing and administering punishment (including the intentions of members of a legislature and possibly a sentencing commission, a sentencing judge, and prison officials), (203) differentiating between intentional and foreseen punishment can be difficult, (204) and it is unclear whether any difference would hold moral salience. (205) Professor David Enoch has argued that states' reliance upon the distinction between intention and foresight is an attempt to evade moral responsibility and that state actors should instead feel heightened responsibility to take into account the foreseen effects of their actions. (206) Professor Jesper Ryberg has argued through the use of hypotheticals that attempts to exclude foreseeable side effects and other unintended aspects of punishment from evaluations of punishment severity do not accord with common intuitions of just deserts and are "implausible." (207) Professor Adam Kolber has made a compelling case for a justification-symmetry principle: namely, "any state actor who harms an offender in the name of just punishment must have a justification for doing so if you or I would need a justification for causing the same kind of harm to nonoffenders" under the criminal law. (208) Thus, state actors should be required to justify harms that they recklessly or negligently inflict upon offenders in the punishment process. (209) Finally, to the degree that an aim of punishment is to convey censure or blame, the state "cannot define the content of its messages by authorial fiat," in the words of Professors Bronsteen, Buccafusco, and Masur, but must consider reasonable interpretations of its message, which would include foreseeable harms associated with a given penalty. (210)

   1. Additional Support for Conceptualizing Certain Foreseeable Risks of Harm as Punishment

      An expressive understanding of punishment suggests additional reasons why evaluation of punishment severity should extend beyond intentional deprivations to consider foreseeable, substantial risks of serious harm, proximately caused by the state during confinement. As stated previously, this Article adopts the position that the penalty imposed in response to an offender's crime should communicate society's disapproval and censure. (211) Thus, it is critical that society view the medium of the message (the penalty) as censorious and the penal response as roughly proportionate to the seriousness of the offense. (212) For this reason, some scholars have concluded that a penalty should be measured by how society perceives the typical offender will experience it. (213)

      It is reasonable, however, to expect that the widespread experience of a class of people subjected to a penalty will shape, at least to some extent, the public's perception of the severity and constitution of that penalty, so long as the experience of that class is brought to the public's attention. (214) This should be especially true when published, empirical studies document a group's experience and the class of persons affected can be readily identified. (215) If the public recognizes that offenders with major mental illnesses are more vulnerable to serious physical or mental harm in...