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Humane Punishment for Seriously Disordered Offenders: Sentencing Departures and Judicial Control Over Conditions of Confinement

Posted: 21 May 2013 Last revised: 28 May 2014

E. Lea Johnston

University of Florida - Levin College of Law

Date Written: May 3, 2013


At sentencing, a judge may foresee that an individual with a major mental disorder will experience serious psychological or physical harm in prison. In light of this reality and offenders’ other potential vulnerabilities, a number of jurisdictions currently allow judges to treat undue offender hardship as a mitigating factor at sentencing. In these jurisdictions, vulnerability to harm may militate toward an order of probation or a reduced term of confinement. Since these measures do not affect offenders’ day-to-day experience in confinement, these expressions of mitigation fail to protect adequately those vulnerable offenders who must serve time in prison. This article argues that judges should possess the authority to tailor the conditions of vulnerable, disordered offenders’ carceral sentences to ensure that sentences are humane, proportionate, and appropriate for serving the intended aims of punishment. To equalize, at least in part, conditions of confinement for this population, judges should consider ordering timely and periodic mental health evaluations by qualified professionals, disqualifying facilities with insufficient mental health or protective resources, specifying the facility or unit where an offender will serve or begin his sentence, and mandating certain treatment in prison. Allowing judges to exercise power over correctional conditions in this way will allow judges to fulfill better their institutional function of meting out appropriate, humane, and proportionate punishments, subject prison conditions to public scrutiny and debate, and help reform the image and reality of the criminal justice system for some of society’s most vulnerable individuals.

Notes: [The article has been renamed and can now be found at E. Lea Johnston, Conditions of Confinement at Sentencing: The Case of Seriously Disordered Offenders, 63 Cath. U. L. Rev. __ (forthcoming 2014).]

Keywords: mental disorder, mental illness, sentencing, sentencing departures, inhumanity, conditions of confinement, mitigation, offender hardship, undue hardship, vulnerability, proportionality, proportional punishment, equal impact

Suggested Citation

Johnston, E. Lea, Humane Punishment for Seriously Disordered Offenders: Sentencing Departures and Judicial Control Over Conditions of Confinement (May 3, 2013). Available at SSRN: or

E. Lea Johnston (Contact Author)

University of Florida - Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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