Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences. I make two central claims: First, a successful justification of punishment must take account of offenders' subjective experiences (...) when assessing punishment severity. Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner. Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress. Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now. I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness. I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert. (shrink)

In the classic abolitionist text, Prison on Trial, Thomas Mathieson argues that imprisonment cannot be justified by appeal to any standard punitive aim: rehabilitation, deterrence, incapacitation, or retribution. The aim of this paper is to give prison an ‘appeal hearing’: to examine whether it can be justified by a set of punitive aims not considered by Mathieson. In particular, it asks whether imprisonment can be justified by the ‘communicative’ theory of punishment proposed by Antony Duff. Duff sees imprisonment as having (...) an important role in a properly ‘communicative’ system of criminal justice: to serve as the ultimate sanction for offenders who fail to comply with other forms of punishment; to shock offenders into repentance for their crimes; and to communicate to offenders in a symbolically appropriate way the seriousness of their offence. This paper argues that each of Duff’s rationales fails: using prison as an ultimate sanction violates the communicative principle of treating offenders as responsible moral agents; the evidence suggests that prison will impede rather than facilitate repentant understanding; and while prison might be able to express censure, it is not rationally connected to enabling a meaningful moral dialogue. As such, it concludes that this particular appeal hearing for imprisonment fails. (shrink)

Charles L. Griswold, Forgiveness: A Philosophical Exploration, 268pp. Jeffrie G. Murphy, Getting Even: Forgiveness and Its Limits (New York: Oxford...