Punishment, Justice and the Problem of Law

Abstract

Throughout the preceding pages I have argued that contemporary penal practice fails to satisfy standards of social justice, and that it also fails to deliver criminal justice in the sense of justice as fairness and equity to offenders, treating like offences similarly, not penalising people for who or what they are, only for what they have done. Moreover, these shortcomings of penal practice are not only failings according to some utopian notion of a perfectly just social order, they are failings according to current, widespread penal policies. The social injustices of criminal justice are undermining attempts of legislators, policy-makers and other penal professionals to achieve agreed aims such as twin-tracking, rationing of imprisonment to serious offences, and equality of impact of penalties. Demonstrable overrepresentation of black offenders, foreign offenders, unemployed and impoverished offenders in prison populations leaves penal systems open to suspicion that they are not reserving incarceration for serious crimes, but that they continue to use prisons to repress the disaffected, coerce the indigent and corral the unwanted. The extreme differences in prison conditions and regimes even within the same jurisdiction affront notions of equality of impact of penalties or humane containment of prisoners. Moreover, the interventiveness and aggregation of the latest community sanctions come close to rendering the idea of bifurcation meaningless, and the continuing presence of mentally disordered and homeless offenders in prisons because they have nowhere to go rather than because they have perpetrated serious crimes, belies supposed commitment to proportionality of sentence to offence gravity and offender culpability.