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date: 26 May 2020

Summary and Keywords

The punishment of criminal offenders constitutes a topic that has for many years received comprehensive attention, both in narrower academic circles and in broader public debate. This is not surprising. State-mandated infliction of death, suffering, or deprivation of freedom on citizens should from the outset be met with hesitation, and constitutes a practice which clearly calls for more profound considerations. Though the theoretical discussion of punishment has dealt with many conceptual and ethical issues, from an overall point of view, it is dominated by two questions.

The first question, as indicated, concerns the justification of legal punishment. Why and under what conditions is it justified for the state to impose punishment on perpetrators? The traditional answers have been split between the utilitarian approach, according to which punishment can be justified in terms of its future desirable consequences, mainly crime prevention, and the retrospectively oriented retributivist approach, which justifies punishment in terms of just deserts. In the modern discussion, the picture has become more diverse. Consequentialist and retributivist justifications have been developed in many different versions and several attempts have been made to combine forward- and backward-looking considerations into coherent schemes. Moreover, genuinely new accounts of penal theories have also been presented.

The second question concerns the issue of how different crimes should be punitively responded to. Though this question is obviously theoretically closely related to the first, it is also clear that the question of how individual offenders should be punished for their respective misdeeds prompts a plethora of more detailed challenges such as: What should determine the gravity of a crime? How should one determine the severity of a punishment? Are there types of punishment that should never be used in the criminal justice system (e.g., capital or corporal punishment)? Much of the contemporary discussion within penal theory is devoted to the task of providing principled solutions to these detailed challenges.

Keywords: consequentialism, crime, distribution, penal theory, proportionality, punishment, retributivism, severity, utilitarianism

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