After the Gavel Falls: Rethinking the Relationship Between Sentencing and Prison Functions

Netanel Dagan*, Shmuel Baron

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

The relationship between the purposes of sentencing and imprisonment can be variously conceptualized. The paper theorizes and contrasts two models of sentencing and prison relations—continuity and separation. The continuity model assumes continuity between sentencing and prison regime. Under this model, all sentencing purposes may impact prison regime. The separation model distinguishes between the purposes of sentencing and of imprisonment. Under the separation model, the retributive element of imprisonment is completely fulfilled by depriving the prisoner of liberty. Retributive considerations can affect only the duration of the sentence, while prison regime is determined solely according to rehabilitation/risk and prison security considerations. The paper problematizes the separation model as it suffers from two difficulties: (a) the idea that the retributive element of imprisonment is fully fulfilled by depriving the prisoner’s liberty undermines the “hard treatment” element of the retributive punishment. Relatedly, since no prison regime can deprive a person solely of liberty no custodial sentence can be justified; (b) given the inability to isolate the denial of liberty as the only deprivation of imprisonment, the separation model also encourages judges to underestimate and feel less responsible for the full meaning of their decision to imprison. Finally, the paper will argue that liberal prison conditions may (and should) be achieved even when seeing retribution as relevant for prison life and will offer possible ways to do so.

Original languageAmerican English
Pages (from-to)175-195
Number of pages21
JournalCriminal Law and Philosophy
Volume17
Issue number1
DOIs
StatePublished - Apr 2023

Bibliographical note

Publisher Copyright:
© 2021, The Author(s), under exclusive licence to Springer Nature B.V.

Keywords

  • Criminal justice
  • Desert
  • Prison conditions
  • Prison law
  • Punishment
  • Retributivism
  • Sentencing

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