Subjective Punishment

In Marciano, Alain and Giovanni Battista Ramello (Eds.). 2019. Encyclopedia of Law and Economics. Springer, Forthcoming

Posted: 8 Dec 2017

See all articles by Josef Montag

Josef Montag

Charles University, Faculty of Law - Department of Economics

Tomáš Sobek

Masaryk University - Faculty of Law

Date Written: December 3, 2017

Abstract

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.

Suggested Citation

Montag, Josef and Sobek, Tomáš, Subjective Punishment (December 3, 2017). In Marciano, Alain and Giovanni Battista Ramello (Eds.). 2019. Encyclopedia of Law and Economics. Springer, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3081748

Josef Montag (Contact Author)

Charles University, Faculty of Law - Department of Economics ( email )

nam. Curieovych 7
Prague 1, 11640
Czech Republic

Tomáš Sobek

Masaryk University - Faculty of Law ( email )

Veveri 70
Brno, 61180
Czech Republic

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