Giant Dutch prisoner: Different prisoners experience punishment differently. So why don't we treat them differently?

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Feb. 3 2011 4:23 PM

Hard Time

Different prisoners experience punishment differently. So why don't we treat them differently?

Prison cell. Click image to expand.
Is this cell suitable for all prisoners?

Ever since Dutch prisoner Angelo MacD. was sent to the big house in September 2010 for fraud, he has had one complaint: It's not big enough.

MacD., described by his lawyer as a "giant," has filed suit in The Hague because his cell is too small. The prisoner is 6 feet 9 inches tall, 500 pounds, and "a meter wide and a meter deep," with barely enough room to turn around in his cell, said his lawyer: "He is not obese. He is a giant. He even walks like a giant, like out of the comic books." MacD. (a nickname) argues that confining him to an ordinary cell violates the European Convention on Human Rights.

The case highlights a larger issue, so to speak: Not all prisoners experience punishment the same way. Sometimes the difference is emotional, as with Paris Hilton when she claimed she had claustrophobia and couldn't do jail time after a 2007 arrest for DUI. (She was reassigned to house arrest.) Sometimes it's physical, as with the Dutch prisoner. Either way, sentencing doesn't take into account the subjective experience of prisoners.

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Some may argue that this is precisely the point of incarceration: Punishment is meted out according to the crime, not the criminal. If prison is harder on some prisoners than others, well, maybe they should have thought about that before they robbed a bank. But there is another perspective, articulated by Adam Kolber, a law professor at Brooklyn Law School. "We have certain obligations to take subjective experience into account when sentencing or when establishing sentencing policies," writes Kolber in a 2009 article in the Columbia Law Review, "The Subjective Experience of Punishment."

Kolber describes the hypothetical cases of two prisoners, "Sensitive" and "Insensitive." Both are sentenced to prison for committing the same crime. But Sensitive is more, well, sensitive to the harsh prison environment—more anxious, fearful, and easily depressed. Insensitive, meanwhile, adapts quickly to the new environment. Each day in prison therefore inflicts more suffering on Sensitive than on Insensitive. If we're trying to punish both men equally, Kolber argues, shouldn't it follow that Sensitive gets a lighter sentence than Insensitive? Otherwise, from a subjective perspective, one prisoner is getting a harsher punishment for the same crime.

Of course, prisons already give certain prisoners special treatment. Celebrities such as Lindsay Lohan are often segregated from other prisoners for safety reasons. Same with sexual deviants, who might be assaulted by their fellow inmates. Prisoners with mental health issues might get placed in a special psychiatric ward. A paraplegic prisoner might get access to a lower bunk. If a person is genuinely claustrophobic—or is really good at pretending he is—he may get reassigned.

That's not enough, argues Kolber. Right now, prisons make accommodations for prisoners only in the most extreme cases, while ignoring the differences in sensitivity between prisoners whose conditions are less extreme. For example, someone with a diagnosable anxiety disorder might get special treatment, while someone who is merely anxious does not. Ideally, says Kolber, we'd measure factors like anxiety along a spectrum—the more anxious you are, the harsher your experience of prison, the lighter your sentence. (And, less charitably, the opposite: The more resilient you are, the more time you should serve.)

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