Proximity, pain, and State punishment
| DOI | 10.1177/1462474517701303 |
| Published date | 01 April 2018 |
| Date | 01 April 2018 |
| Subject Matter | Articles |
Punishment & Society
2018, Vol. 20(2) 235–254
!The Author(s) 2017
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DOI: 10.1177/1462474517701303
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Article
Proximity, pain, and
State punishment
David Hayes
The University of Sheffield, UK
Abstract
This article examines the difficulties of calculating the severity of sentences presented
by differences in individual penal subjects’ experiences, a key challenge to proportion-
ality-based justifications of punishment. It explores the basic arguments for and against
recognising subjective experience, before advancing a model of penal severity based
upon the proximity of the pains of punishment to penal State actions. This model could
partially resolve foundational problems in giving criminally just sentences. Whilst we
cannot wholly reconcile penal subjectivism and objectivism, there are still some oppor-
tunities to improve penal policy and sentencing practice by adopting a proximity model
for penal severity.
Keywords
measurement, pains of punishment, penal policy, penal severity, sentencing
Introduction
A considerable literature shows that both custodial and non-custodial sanctions are
routinely accompanied by the experience of suffering, arising out of both the penal
State’s own interventions, and the wider activity of non-penal State actors (e.g.
Crewe, 2011; Durnescu, 2011; Payne and Gainey, 1998; Sexton, 2015; Sykes, 1958).
The existence of these ‘pains of punishment’ raises the question: to what extent, if
at all, should that pain be considered part of the punishment inflicted, for the
purposes of calculating the severity of a sentence? This issue has produced extended
debates between penal subjectivists, who calculate severity in terms of the pains
experienced by the penal subject (e.g. Bronsteen et al., 2009, 2010; Kolber, 2009a,
2009b); and objectivists, who focus on what deprivations were intended by the
Corresponding author:
David Hayes, School of Law, The University of Sheffield, Bartolome
´House, Winter Street, Sheffield S3 7ND,
South Yorkshire, UK.
Email: d.j.hayes@sheffield.ac.uk
sentencing authority (e.g. Gray, 2010; Haque, 2013: 79–80; Markel and Flanders,
2010; Markel et al., 2011).
This debate has so far been conducted in rather binary terms: one is either
wholly objectivist or subjectivist about the question of what constitutes punish-
ment. This article subjects that binary to critical attention and proposes a limited
synthesis based upon the proximity of the pains of punishment to the intentional
acts of sentencing authorities that would encourage a closer correspondence
between criminal justice and social reality. Although this paper is situated in the
sentencing practice of England and Wales, the model it proposes is abstract and
could be adapted to other jurisdictions.
The article begins by exploring the fundamental challenges facing attempts at
just sentencing for both penal objectivists and subjectivists. It then lays out the
‘proximity’ model in detail. Lastly, it considers the implications of this model for
both sentencing practice and penal policy.
Sentencing, delimitation, and difference
The orthodox definition of punishment
Subjectivist and objectivist measurements of punishment tend to take subtly dif-
ferent approaches to the task of defining what ‘punishment’ consists of. However,
they start from more or less the same point: the ‘Flew–Benn–Hart’ account, devel-
oped in the late 1950s and early 1960s. On this account, criminal punishment has
five characteristics. It is (a) unpleasant, (b) imposed for conduct that has breached
legal rules, (c) targeted against the individual responsible for that conduct, (d)
imposed intentionally by State agents other than the subject, who are (e) acting
under the authority of the breached law (Benn, 1958; Flew, 1954; Hart, 1960;
McPherson, 1967 compare Feinberg, 1970; Walker, 1991).
From the perspective of measuring how much punishment a particular sentence
involves, two of these five characteristics are seemingly in tension: element (a),
unpleasantness, implies that severity is calculated according to how unpleasant
the subject’s actual experience of punishment is; whilst for element (d), intention-
ality, what matters is how much unpleasantness the State’s agents objectively
intend. As a result, element (a) is sometimes given as an objectivising compromise,
‘normally considered unpleasant’ (compare Walker, 1991: 1–3). Rather than rely-
ing on individual experiences, the accepted severity of the punishment is calculated
in terms of how unpleasant something would usually be, determined by sentencing
authorities’ experiences, and by the distant perspectives of penal policy-makers
(Haque, 2013: 79–80; Markel and Flanders, 2010).
Ultimately, this definition has proven popular amongst penal theorists and
policy-makers alike (e.g. Duff, 2001; Markel, 2001). It is especially hegemonic at
the level of sentencing, where decisions as to penal severity must necessarily be
made with imperfect knowledge about the penal subject’s past and future con-
text (although note Ashworth, 2015: 192–197). Whilst the pains of punishment
236 Punishment & Society 20(2)
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