From the moment someone is arrested until the moment he or she steps off the bus at state prison, his or her mind and body are being punished. Experiential life does not discriminate the traumas of incarceration due to high bail or lengthy prison sentence. The Penal Law demands that judges sentence in one dimension—length—and in one tense—the present. But by taking pages from constitutional theory and cognitive science, judges can learn to impose sentences that acknowledge the depths of confinement.
From start to finish, all incarceration is experientially connected; legal distinctions between pre-trial detention and post-conviction sentence are fictions; innocence and guilt irrelevant. The cruelty of confinement cannot be fractionated into innocent integers like the amount of bail or a term of years—incarceration is living time cater-cornered with human suffering.1
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