Encyclopedia of Law and Economics

2019 Edition
| Editors: Alain Marciano, Giovanni Battista Ramello

Subjective Punishment

  • Josef MontagEmail author
  • Tomáš Sobek
Reference work entry
DOI: https://doi.org/10.1007/978-1-4614-7753-2_720

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 codetermined by a host of other factors, such as differences across prison facilities, judicial delays, the punishee’s psychological setup, 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.

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Copyright information

© Springer Science+Business Media, LLC, part of Springer Nature 2019

Authors and Affiliations

  1. 1.International School of EconomicsKazakh-British Technical UniversityAlmatyKazakhstan
  2. 2.Faculty of LawCharles UniversityPragueCzech Republic
  3. 3.Faculty of LawMasaryk UniversityBrnoCzech Republic