Sentencing and Human Rights: The Limits on Punishment

Abstract

Sentencing and Human Rights sets out to develop a systematic account of the importance of human rights principles at sentencing. Sentencing theory is dominated by discussion of the aims of punishment, but it is questionable whether the limits identified in the leading theories—principally the idea of proportionality or commensurability between the wrongdoing and the sentence—have served to constrain the sentencing decision in practice. It is argued that one reason for this is that insufficient attention has been paid to the special nature of state punishment as a process mediated by and through law. Punishment in the rule of law demands adherence to human rights principles, notably legality, proportionality, equality, and judicial responsibility for the determination of the sentence. Consideration of these principles provides the basis for an examination of the way in which they might be expected to limit important sentencing practices, such as the imposition of aggravated sentences for previous convictions, the treatment of confessions, and mandatory minimum sentences. This examination of the human rights limits on the sentence suggests that it might be necessary to reconsider the way in which state punishment is conceptualized in sentencing theory.