Chapter

Punishment and Injustice

Hyman Gross

in Crime and Punishment

Published in print January 2012 | ISBN: 9780199644711
Published online May 2012 | e-ISBN: 9780191738944 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199644711.003.0006
Punishment and Injustice

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This chapter is devoted to the basic principles of injustice that must be guarded against in the criminal process. In opposition to the moralistic approach, it argues that a claim that punishment is deserved does not have the positive spin that it is thought to have, and that just desert is also only a protective principle that seeks to ensure respect for innocence. Proportionality between crime and punishment is another favorite of the moralist, but again its importance lies not in striving to match up to moral perfection but rather in avoidance of the kind of gross mismatch that is easily recognizable as injustice. Disparity of sentences is the next moral hazard. It is universally recognized as a form of serious injustice, but its moral failing lies in its arbitrary or idiosyncratic treatment of cases, not in failing to follow some morally endorsed formula for assessing and matching the criminal conduct in two cases that are said to be candidates for similar treatment. And finally, there is a minimalist principle that seeks to limit punishment to what is necessary to keep the law credible, even when there is a good case that more than that is deserved.

Keywords: crime; criminal punishment; injustice; just desert; minimalist principle

Chapter.  3500 words. 

Subjects: Criminal Law

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