"Hard Treatment" as an Integral Part of Criminal Punishment: The Problem of Offender's Subjective Sensitivity

Abstract

Criminal punishment typically entails censure and various forms of deprivation and inconvenience (hard treatment). The latter raises many questions. What functions does the hard treatment of offenders perform? Is it perhaps a mere conventional symbol of expressing society's indignation because of a committed crime? Is its use necessary, or could it be replaced by "something better"? As long as hard treatment remains an integral part of the social response to crime, the question of the criteria of its distribution (sentencing criteria) is of crucial importance. The article deals with the question of whether proportionality in the assessment of punishment also requires taking into account the offenders' individual sensitivities to deprivations of punishment. While this issue is more or less resolved in the case of monetary fines, it turns out to be very controversial in the case of prison sentences. After reviewing and evaluating various standpoints, the author argues that the courts should pay (limited) attention to individual sensitivities.