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Sentencing And The Salience Of Pain And Hope, Benjamin Berger
Sentencing And The Salience Of Pain And Hope, Benjamin Berger
Benjamin L. Berger
What would a jurisprudence of sentencing that was induced from the experience of punishment, rather than deduced from the technocracy of criminal justice, look like? Rather than focusing narrowly on the question of quantum, such a jurisprudence would be concerned with the character and quality of punishment. A fit sentence would account for pain, loss, estrangement, alienation, and other features of the offender’s aggregate experience of suffering at the hands of the state in response to his or her wrongdoing. This would be a broader, more resolutely political conception of criminal punishment. This article shows that the jurisprudence of the …
Constitutional Principles In Substantive Criminal Law, Benjamin L. Berger
Constitutional Principles In Substantive Criminal Law, Benjamin L. Berger
Benjamin L. Berger
Since Milsom’s famous dismissal of the “miserable history of crime in England,” criminal law has undergone a revolution in constitutional significance. The rise of rights constitutionalism as the heart of the modern liberal rule of law has given criminal law a new life in which it is subject to substantial justice-based innovation through appeal to the internal and basic norms of the legal system itself. Far from the marginal and exceptional status once ascribed to it by Milsom, this chapter argues that criminal law is now best understood and approached as a species of constitutional reflection. Substantive criminal law has …