How the prison is a black box in punishment theory †

Abstract

The field of punishment theory promises to deal with the question of whether state punishment can be justified and on what grounds. In this field, punishment is rarely conceptualized as imprisonment. Even in the more practical subfield of sentencing theory, the realities of prison conditions rarely appear. Legal actors borrow the vocabulary of punishment and sentencing theory, proceeding as if theories speak to and justify the practice of imposing custodial sanctions and imprisonment generally. This article tries to explain how the fields of punishment and sentencing theory largely avoid the prison. The question, in a sense, is how a field can evade what is ostensibly its own subject matter. What this critique means is that sentencing authorities and other legal actors should turn away from punishment theory – or should look well beyond its boundaries – when they are thinking through the legitimacy and severity of the custodial sanctions they are imposing and administering.