University of Cincinnati Law Review, Vol. 89, No. 3, 2021
Wayne State University Law School Research Paper No. 2021-81
41 Pages Posted: 15 May 2021 Last revised: 3 Aug 2021
Date Written: May 13, 2021
The article addresses the question whether the punishment, besides fitting the crime, should also fit the criminal. A widely accepted principle of proportionality declares the worse the crime, the worse the punishment. But how should punishment severity be measured? Specifically, when the severity of a punishment is being evaluated for the purpose of fitting the crime, should idiosyncratic features of the offender be taken into account? Should a person suffering from claustrophobia get a shorter sentence because incarceration will be harder on him? Should being assaulted while incarcerated result in a shorter sentence because the actual incarceration was more harsh than expected? Should the foreseeable consequences of incarceration–losing a particularly high paying job or getting badly desired publicity–be considered in sentencing? The article argues, contrary to some recent scholarship, for an “objective theory” of punishment, according to which such idiosyncratic features of offenders are irrelevant to the determination of the punishment deserved, but may be considered as part of multi-valued scheme for managing social resources generally.
Keywords: Punishment, retributivisim, proportionality, lex talionis
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