Penal Impact: Towards a More Intersubjective Measurement of Penal Severity

Abstract

The measurement of penal severity is vital to a range of different justifications of criminal punishment. However, despite the wealth of material devoted to the measurement of penal severity, there remain critical weaknesses in our ability to say that like cases have been treated alike in modern (Western) penal systems. This article explores existing measures of sentence severity and argues that each is fundamentally limited for the purposes of analysing penal severity in practice. It then provides an overview of an alternative framework, ‘penal impact’, which conceptualises subjective experiences of punishment in terms of both the diversity and the quantum of the pains imposed by punishments. It examines some of the epistemological and ethical challenges of pain-based analysis, and concludes on the strengths and limitations of penal impact, offering justifications for an intersubjective measurement of penal severity.

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