CrimProf Blog

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

Wednesday, June 29, 2011

The Experiential Gap Between Tort and Criminal Law (Kolber)

Tort law pays quite a bit of attention to bad experiences.  Pain and suffering are taken seriously, both in terms of actual doctrine (we are instructed to compensate individual plaintiffs for the amount of pain and suffering they experience) and our justifications of doctrine (to provide corrective justice one must compensate for tortiously caused pain and suffering and to appropriately deter bad behavior, we need to consider the experiential harms those behaviors are likely to cause).  

Granted, it is difficult to identify physiological markers of current or past experiences like pain and suffering, so it is not surprising that tort law often resorts to rough proxy measurements (by considering, for example, whether plaintiffs were in a zone of danger or had physical manifestations of distress).  These inexact proxies for bad experiences reduce the likelihood that litigants will invent or exaggerate their symptoms.  But at least in tort contexts, the law purports to care about individualized measurements of harm.  If a person is falsely imprisoned, he can sue for the amount of harm that he experienced.  There is no general formula that converts objective measurements, like the number of hours falsely imprisoned and the dimensions of confinement, into amounts of compensation (see here at 1574).

Though we frequently fail to recognize it, experiences also matter in criminal contexts.  Technologies better able to assess experience can help us decide when a crime occurred, how blameworthy the perpetrator was, and how much punishment he should receive.  If we can measure the harm of, say, false imprisonment to individual tort plaintiffs (who have incentives to lie), then we can calculate the severity of confinement experienced by particular prisoners.  Moreover, we usually say that criminal defendants are entitled to more process than tort plaintiffs, not less.  While we presumably don’t want to spend the money to make such assessments of prisoners, we should not pretend that rough subjective assessments are impossible: they just cost more than we are willing to spend.

(Adapted from this article, pp.647-48 (UPDATED) and originally posted here).


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