Penal Severity and the Modern State

Abstract

Penal severity in the modern state is best understood in terms of right abridgment, which must be kept parsimonious, proportionate, and nondegrading if sanctions are to remain consistent with respect for the basic moral rights of individuals that is required of everyone, including state officials. Although there is disagreement about which basic moral rights individuals possess, there is enough overlap among the competing views to yield a consensus account of penal severity. For the most part, the state need not and should not be concerned with the ways in which penal sanctions are subjectively experienced by offenders. The modern state is supposed to keep its distance from the internal lives of individuals, instead securing for them the rights that make it possible for them to carve out and live lives of their own choosing. As long as individuals have fair notice of the defensible penal sanctions that await them if they violate the criminal law, they should be understood to have risked the aversive experiences that await them upon criminal conviction.