Some Aspects of Human Suffering and the Criminal Law

Abstract

There is no single informing principle relating to suffering which permeates the whole of the criminal law but it is relevant to the definition of some crimes, sentencing, the operation of the criminal justice system and the issue of the limits of the punitive or coercive powers of the state. Preventing the infliction of suffering as such has never been the primary rationale of the criminal law but the definitions of most crimes against the person include conduct which usually causes suffering. Every system of criminal law has a sentencing regime which includes penalties which may cause suffering. Suffering of the victim is also relevant to the determination of the sentence to be imposed. Suffering can flow from the operation of the processes of the criminal justice system itself. Examples include the curtailment of the liberty of defendants and witnesses, emotional disturbance suffered by witnesses or jurors and illegal but informally sanctioned violence against suspects or prisoners. Limits to the powers of the state to inflict suffering are discussed. It is broadly accepted that there is a point beyond which society should not go in the exercise of its coercive or punitive powers no matter how serious the crime or how great is the threat to order or security. It is suggested that that point is reached when a measure is dehumanizing, involves degradation as opposed to merely censure or when it causes suffering which entails destruction of the human personality.