Modern punishment theory is based on an inadequate conceptualization of the severity of incarceration. While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty. Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing. This lack of official attention to how prison is experienced by incarcerated people is one of the drivers of mass incarceration.

This Article is the first scholarly work to analyze the weaknesses of punishment theory using a new and flourishing branch of political philosophy: epistemic injustice theory. The theory posits that disfavored social groups are excluded from contributing information about their experience that should be relevant to policy decisions. Epistemic injustice theory can be applied to analyze why incarcerated people’s accounts of prison’s cruelties are ignored or discounted in punishment decisions. As a disfavored group, prisoner accounts of prison’s harshness are discredited. As a result, sentencing decisions are made with only the thinnest understanding of the punishment being imposed — number of years of lost liberty — and with no accounting for the actual impact of incarceration on the person sentenced.