Abstrakt
The 'equal punishment for the same crime' principle is generally agreed upon - yet its implementation differs radically depending on whether the punishment is measured purely in nominal terms or the subjective perspective of the punishee is accounted for. This is simply because different people may experience the same punishment with differing intensity.
Legal scholars have recently been proposing that improvements in scientific knowledge and advancing technologies (such as functional magnetic resonance imaging), which allow us to measure subjective perceptions and feelings, need and should be incorporated in our penal systems. This would facilitate calibrating the punishment not only to the crime but also to the offender's persona, so that different people experience equally tough punishment for the same crime.
However, such a substantial change in criminal law and policy necessitates a certain amount of public legitimacy and understanding among constituents. We run a simple experiment in order to learn how people understand punishment and to ascertain whether such legitimacy exists.
We find that it may be, in the case of pecuniary punishments. With regard to incarceration policies, however, the likelihood of popular acceptance of proposed innovations is rather remote.
Our findings therefore point out a serious challenge to the existing literature and may complicate the implementation of suggested reforms, even if legal scholars find them worthwhile.