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Editor: Kevin Cole
Univ. of San Diego School of Law

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Monday, January 31, 2011

The Subjective Experience of Being a "Giant" in Prison (Kolber)

Kolberaj_photo According to this BBC article, a 6' 9'', 500+ pound Dutch prisoner is arguing that keeping him in an ordinary cell violates the European Convention on Human Rights.

The issue relates to a more general phenomenon that I discuss in The Subjective Experience of Punishment (as well as here and here).  Namely, not all prisoners experience conditions of confinement in the same way.  Though we typically ignore differences in punishment experience, I argue that, according to our best justifications of punishment, we are morally required to take such differences into account.

In many cases, it is difficult to accurately assess or anticipate an inmate's punishment experiences.  In a case like this one, however, it is easy to see why the prisoner will have an especially difficult time.  According to the article, he has to duck his head to fit in the door of his cell.  He cannot fit comfortably on his bed, and in order to shower, "he must first wedge himself into the cubicle, then crouch down under the head."  No doubt, we must consider the costs involved in accommodating this prisoner, but we cannot pretend that he is likely to experience the confined conditions of incarceration in the same way as the average prisoner. 

And while it is true that he ought to have taken his large size into account before he committed criminal activity that could land him in prison, such facts do not alter our usual analysis of proportional punishment.  If people could justly be incarcerated under any conditions whenever they knew or should have known about those conditions before committing criminal activitly, then we could justify virtually any conditions of confinement for any crime.  Similar reasoning would justify locking people up for any duration, so long as they were informed of the duration in advance.

Part of the reason that people are hesitant to make adjustments for a prisoner like this is that they view the adjustments as "special accommodations."  Indeed, they are given real-world prisons that have already been constructed.  We deem subjectively-sensitive punishments to be special accommodations, however, partly because we fixate on our conventional, objective understanding of punishment conditions.  As I explain in my article:

Imagine, by contrast, the fictitious punishment of “boxing,” where an offender who is boxed is confined to a cell that has dimensions n by n by n, where n equals the height of the offender. Setting aside the horrendousness of the punishment itself, is it unfair when offenders of different heights are boxed? I think not. Yet, in objective terms, offenders who are boxed receive quite different punishments. Nevertheless, it seems fair that taller people should be placed in larger cells than shorter people. Simply by reframing punishment descriptions in subjective terms, we can ease or eliminate perceptions of punishment inequality.

 My thanks to Doug Berman for his blog post that helpfully points to other discussions of the subjective experience of punishment by Simons, Baer, Bronsteen, Buccafusco, Masur, Markel, Flanders, and Gray.

-AJK 

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