'Responsive Penal Censure' and its Implications

Abstract

This chapter discusses a key dimension of Julian V Roberts’ conception of ‘penal censure’. In a number of articles, he and his co-authors have argued that while one should indeed, as some penal theorists suggest, understand criminal punishment as a species of censure (and should understand censure in retributive terms), that censure should be ‘responsive’ and ‘dynamic’ rather than ‘static’: that is, its form and severity should be modulated by the offender’s own response to their crime and to their punishment. Section 2 sketches this argument and shows why it is important and illuminating. However, Section 3 suggests that one should not draw from this insight the practical implications for sentencing and for the administration of sentences that Roberts seeks to draw: in particular, one should not treat the offender’s ‘post-sentence conduct’, their remorseful and constructive response to their punishment, as a retributive reason to mitigate it. Such conduct would give reason to mitigate the offender’s punishment only if the original sentence was based on the assumption that the offender would remain unrepentant; but that is not something that we, or the sentencer, should assume.