Wednesday, April 10, 2013
The Supreme Court has held that pretrial detention does not constitute punishment. The received wisdom among most punishment theorists (and courts take a similar position) is that for some treatment to constitute punishment, it needs to be intended as such. Since detainees are presumed innocent; we don't intend for them to be punished. Nevertheless, if tried and convicted, prisoners almost always receive credit toward their sentences for time served in detention. Why do we reduce prisoners' punishment by time spent unpunished? I call this the mystery of credit for time served.
Courts and theorists aside, most people will have no problem resolving the mystery: we give credit for time spent in detention because it's close enough to punishment. It's harsh treatment inflicted by the state, and most people are inclined to include that in the mix when deciding if a person received appropriate punishment. So if a person spends a year in detention and is sentenced only to time served, most laypeople think it's at least possible the person received appropriate punishment, yet theorists are left with the unusual view that the person received no punishment at all.
Why is all of this important? Here is one of several reasons: Many have bemoaned the collateral consequences associated with imprisonment, like the loss of voting rights or the difficulty of finding a job. Some courts and punishment theorists reply: Ah, but these detriments are not punishment. Answer: True, they are not punishment under the traditional definition. But they require a justification, just as punishment does. If you ignore the magnitude of harms foreseeably caused by the state, then you may not be able to justify those harms no matter whether you call them punishment or not.
Here's the key connection: If knowingly-imposed harsh treatment at the hands of the state beforeconviction (i.e., detention) reduces how much punishment is appropriate, then surely knowingly-imposed harsh treatment at the hands of the state after one's sentence ends should also be relevant when thinking about how much punishment is appropriate. Collateral consequences (and other foreseen though unintended harms of prison) cannot be dismissed under a technical definition of what constitutes punishment. For more on the mystery of credit for time served, see here.
(Originally posted at Prawfsblawg)