Research Paper Number
Punishment; sentencing; pain; hope; phenomenology; proportionality
What would a jurisprudence of sentencing that was induced from the experience of punishment, rather than deduced from the technocracy of criminal justice, look like? Rather than focusing narrowly on the question of quantum, such a jurisprudence would be concerned with the character and quality of punishment. A fit sentence would account for pain, loss, estrangement, alienation, and other features of the offender’s aggregate experience of suffering at the hands of the state in response to his or her wrongdoing. This would be a broader, more resolutely political conception of criminal punishment. This article shows that the jurisprudence of the Supreme Court of Canada has nudged the law in precisely this direction, calling on judges to think about sentencing in ways better attuned to the lived experience of punishment. In judgments concerning police misconduct, collateral consequences of a sentence, and delayed parole, the Court has recognized the salience of pain and hope to the task of sentencing, firmly establishing that proportionality – the guiding measure of a fit sentence – is an indelibly individualized concept that must be calibrated to the real effects of the criminal process and proposed sentence on the life lived by the offender. With this, we can begin to imagine new possibilities in our sentencing practices and must conceive of the essential legal and ethical task of the sentencing judge in new terms: an imaginative engagement with the lives of those that they punish.
Berger, Benjamin, "Sentencing and the Salience of Pain and Hope" (2015). Osgoode Legal Studies Research Paper Series. 97.