Hey, Packers fans, have you started to come down from your cloud yet? \u00a0I was about as euphoric as anyone when the final seconds of the Super Bowl ticked down last night, but then my kids \u2014 up way past their bedtime (thank you for the late start time, NFL) \u2014 began to fall apart from fatigue and over-stimulation, and I was vividly reminded of some fascinating reading I\u2019ve done in the past year on \u201caffective forecasting.\u201d<\/p>\n
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. \u00a0For 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. \u00a0An excellent introduction to this research is Jeremy A. Blumenthal,\u00a0Law and Emotions: The Problems of Affective Forecasting<\/em>, 80 Ind. L.J. 155 (2005).<\/p>\n As Blumenthal observes, the research has some interesting implications for law. \u00a0Here are some thoughts, for instance, on implications for criminal punishment.<\/p>\n <\/p>\n Judges are almost certainly as prone to affective forecasting error as anyone else, and it may sometimes infect their sentencing decisions. \u00a0This might happen in two ways. \u00a0First, judges may tend to overestimate the duration of emotional harm suffered by victims. \u00a0Witnessing 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. \u00a0(I do wonder, though, to what extent victims\u2019 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.)<\/p>\n Second, judges may overestimate how emotionally difficult the prison experience will be for defendants. \u00a0The 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. \u00a0An interesting discussion of this research and its implications is here: John Bronsteen et al.,Happiness and Punishment<\/em>, 76 U. Chi. L. Rev. 1037 (2009). \u00a0A judge who hopes to impose a period of protracted misery on a defendant through a long prison term is apt to miss the mark. \u00a0On 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.<\/p>\n