Penal Impact: Towards a More Intersubjective Measurement of Penal Severity

The measurement of penal severity is vital to a range of different justifications of criminal punishment, not least those that value proportionality. However, despite the wealth of material devoted to the measurement of penal severity, there remain critical weaknesses in our ability to say that like cases have been treated alike in modern (Western) penal systems. This article explores existing measures of sentence severity and argues that each is fundamentally limited for the purposes of analysing penal severity in practice. It then provides an overview of an alternative framework, “penal impact”, which explores subjective experiences of punishment in terms of both the diversity and the quantum of the pains imposed by punishments. It examines some of the epistemological and ethical challenges of pain-based analysis, and concludes on the strengths and limitations of penal impact, in comparison to the other measures canvassed, offering justifications for an intersubjective measurement of penal severity.