ABSTRACT

This chapter concerns the justification of punishment for serious crimes of violence.

A typical case of criminal violence—an armed robbery—introduces basic punishment theory, notably principles of deterrence and retribution. The essential question addressed, however, is how the state might punish consistent with the principle of moral regard.

Basic inequities in due process and pervasive social disadvantage potentially undermine claims to justice in punishment. The origins of violent acts in childhood trauma also raise serious questions about the fairness of punishment. The need to answer serious wrongdoing with concrete public action in all communities remains, however. What a recognition of inequality should do is to change the nature of criminal blame. Wrongdoers may be blamed and punished for chosen bad conduct, but should not be condemned for bad character.

The chapter considers essential qualities of a just sentencer and the moral relationship between punisher and punished. The punisher has a responsibility to avoid cruelty. This responsibility includes the public, which has driven the changes that have made the US an especially punitive nation. But what is cruelty in punishment?

The United States Supreme Court, in decisions under the Eighth Amendment’s prohibition of cruel and unusual punishment, has established a principle of individualized sentencing in death penalty cases and for juveniles given life sentences. In these decisions the Court has suggested a standard of moral regard in punishment. Cruelty in punishment occurs when the punisher disregards the uniqueness of the person punished and fails to care for his or her basic good, even within the parameters of punishment.