Communicating Censure: The Relevance of Conditions of Imprisonment at Sentencing and During the Administration of the Sentence

Abstract

In common law, sentencing is chiefly concerned with the duration of a sentence and rarely engages in the conditions under which the sentence is served. Recently, courts in Canada and England and Wales have started to recognise the relevance of certain prison conditions when deciding sentences. These approaches, however, have lacked conceptual clarity and consistency. Building on communicative theories of punishment, this article proposes a novel framework based on ‘state responsibility/blame’ and dynamic censure to justify the relevance of considering the qualitative conditions of imprisonment at sentencing as well as during the administration of the sentence. This framework is coupled by a typology of unjustified harmful carceral conditions that can be considered relevant evidence. This expanded purview of sentencing will offer greater legitimacy of punishment by strengthening communicative practices of punishment that include dynamic censure, including censuring the state for additional and unjustified state‐created harms.