In Marciano, Alain and Giovanni Battista Ramello (Eds.). 2019. Encyclopedia of Law and Economics. Springer, Forthcoming
Posted: 8 Dec 2017
Date Written: December 3, 2017
A punishment implies some discomfort for its recipient --- else it would not punish. Indeed, criminal justice can be viewed as an intricate system that calibrates the severity of punishment --- and therefore the amount of the associated discomfort --- to individual offenses and offenders. This is done primarily by adjusting the nominal size of punishment, given by the length of a prison sentence, the number of hours of community service, or the amount of a fine. However, the discomfort from a punishment is co-determined by a host of other factors such as differences across prison facilities, judicial delays, the punishee’s psychological set up, her wealth, luck, family relations, and so on. It is the interaction of the nominal punishment with these subjective factors that determine the total amount of discomfort that a punishment creates in a punishee. “Subjective punishment” (or individualized sentencing) is an umbrella term for a variety of theories that suggest these factors should be accounted for when courts decide on a punishment. Their common denominator is that --- in order to maintain the equality of the (total) punitive effect for the same crime --- they often imply that different offenders should receive different nominal punishment. This essay aims to provide a broad overview of these theories and their potential implications for criminal justice.
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