Abstract

This article examines the difficulties of calculating the severity of sentences presented by differences in individual penal subjects’ experiences, a key challenge to proportionality-based justifications of punishment. It explores the basic arguments for and against recognising subjective experience, before advancing a model of penal severity based upon the proximity of the pains of punishment to penal State actions. This model could partially resolve foundational problems in giving criminally just sentences. Whilst we cannot wholly reconcile penal subjectivism and objectivism, there are still some opportunities to improve penal policy and sentencing practice by adopting a proximity model for penal severity.

Highlights

  • A considerable literature shows that both custodial and non-custodial sanctions are routinely accompanied by the experience of suffering, arising out of both the penal State’s own interventions, and the wider activity of non-penal State actors (e.g. Crewe, 2011; Durnescu, 2011; Payne and Gainey, 1998; Sexton, 2015; Sykes, 1958)

  • This article subjects that binary to critical attention and proposes a limited synthesis based upon the proximity of the pains of punishment to the intentional acts of sentencing authorities that would encourage a closer correspondence between criminal justice and social reality

  • They may be pains that are directly intended by the sentencing authority; obliquely intended pains arising from either the general consequences of conviction or punishment, or the specific known circumstances of the penal subject; contextual pains that arise out of the multiple contexts of the punishment in question, which react to and intersect with the penal intervention; or wholly unrelated pains coincidental to penal processes

Read more

Summary

Introduction

A considerable literature shows that both custodial and non-custodial sanctions are routinely accompanied by the experience of suffering, arising out of both the penal State’s own interventions, and the wider activity of non-penal State actors (e.g. Crewe, 2011; Durnescu, 2011; Payne and Gainey, 1998; Sexton, 2015; Sykes, 1958). They provide an opportunity to substantially moderate the painfulness of penal State interventions, by better accounting for the different circumstances of particular subjects, whether as individuals or as classes.

Results
Conclusion

Talk to us

Join us for a 30 min session where you can share your feedback and ask us any queries you have

Schedule a call

Disclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.