Hey, Packers fans, have you started to come down from your cloud yet? I was about as euphoric as anyone when the final seconds of the Super Bowl ticked down last night, but then my kids — up way past their bedtime (thank you for the late start time, NFL) — began to fall apart from fatigue and over-stimulation, and I was vividly reminded of some fascinating reading I’ve done in the past year on “affective forecasting.”
In essence, the lesson derived from many years of psychological research is this: people have a pronounced tendency to overestimate how long both happy and sad emotional states will last, even in response to major life events. For instance, research shows that lottery winners come back to earth much more quickly than you would think, while accident victims who suffer permanently disabling injuries also tend to return to their prior emotional state after a readjustment period. An excellent introduction to this research is Jeremy A. Blumenthal, Law and Emotions: The Problems of Affective Forecasting, 80 Ind. L.J. 155 (2005).
What does this have to do with criminal punishment?
Judges are almost certainly as prone to affective forecasting error as anyone else, and it may sometimes infect their sentencing decisions. This might happen in two ways. First, judges may tend to overestimate the duration of emotional harm suffered by victims. Witnessing intense victim distress on display at a sentencing hearing, a judge may not appreciate the power of the psychological coping mechanisms that tend to soften our emotional highs and lows over time. (I do wonder, though, to what extent victims’ interactions with the criminal justice system, including the implicit or explicit encouragement of emotional displays in the courtroom, tend to diminish the speed or effectiveness with which those coping mechanisms operate.)
Second, judges probably overestimate how emotionally difficult the prison experience will be for defendants. The research indicates that, after an adjustment period of a few months, the emotional state of inmates tends to improve steadily over time and may come to approach pre-incarceration conditions. An interesting discussion of this research and its implications is here: John Bronsteen et al., Happiness and Punishment, 76 U. Chi. L. Rev. 1037 (2009). A judge who hopes to impose a period of protracted misery on a defendant through a long prison term is apt to miss the mark. On the other hand, for reasons discussed by Bronsteen et al., release into the community while bearing the stigma of a criminal conviction may actually be more productive of misery than a long prison sentence.