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Confronting Penal Excess

Retribution and the Politics of Penal Minimalism

By: David Hayes
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Published: 14-11-2019
Format: Hardback
Edition: 1st
Extent: 256
ISBN: 9781509917976
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP: £55.00
Online price : £49.50
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About Confronting Penal Excess

This monograph considers the correlation between the relative success of retributive penal policies in English-speaking liberal democracies since the 1970s, and the practical evidence of increasingly excessive reliance on the penal State in those jurisdictions.

It sets out three key arguments. First, that increasingly excessive conditions in England and Wales over the last three decades represent a failure of retributive theory. Second, that the penal minimalist cause cannot do without retributive proportionality, at least in comparison to the limiting principles espoused by rehabilitation, restorative justice and penal abolitionism. Third, that another retributivism is therefore necessary if we are to confront penal excess. The monograph offers a sketch of this new approach, 'late retributivism', as both a theory of punishment and of minimalist political action, within a democratic society.

Centrally, criminal punishment is approached as both a political act and a policy choice. Consequently, penal theorists must take account of contemporary political contexts in designing and advocating for their theories. Although this inquiry focuses primarily on England and Wales, its models of retributivism and of academic contribution to democratic penal policy-making are relevant to other jurisdictions, too.

Table Of Contents

Introduction: The Politics of Penal Minimalism
I. The Pursuit of the Minimal Penal State in an Age of Excess
II. The 'Problem of Punishment'
III. The Structure of this Book

Chapter One: Penal Excess and Penal Minimalism
I. Conceptual Foundations: Penal Excess, Moderation, and Minimalism
II. Political Foundations: Penal Minimalism as a Public Good
III. Conclusion: Two Spatial Metaphors for Penal Excess

Chapter Two: Penal Excess in England and Wales
I. Mass Punishment: Excesses of Size
II. Punishing the Poor: Excesses of Shape
III. Conclusion: The Age of Excess

Chapter Three: Penal Excess as the Failure of Retribution
I. The Historical Context of Retributivism and the Rise of Penal Excess
II. Retributive Proportionality and the Limited Penal State
III. Critiques of Retributive Penal Minimalism
IV. Conclusion: Catching Chimera by the Tail

Chapter Four: Other Routes to Penal Minimalism
I. Rehabilitation and Penal Minimalism
II. Restorative Justice and Penal Minimalism
III. Penal Abolitionism and (Post-)Penal Minimalism
IV. Conclusion: Is Penal Minimalism Possible?

Chapter Five: Proportionality and its Alternatives
I. Five Limiting Factors
II. Conclusion: A 'First Among Equals' Approach to Proportionality?

Chapter Six: Groundwork for a Late Retributivism
I. What Sort of a Theory?
II. Why 'Late' Retributivism?
III. Why Retributivism at All?
IV. Conclusion: Late Retributivism and Orthodox Retributivism

Chapter Seven: Elements of a Late Retributivism
I. Social Awareness: Thinking Beyond the Penal State
II. Political Outspokenness: Towards Substantive Democracy
III. Inter-Subjectivity: Sentencing, for Humans
IV. Self-Deprecation: Towards a Finite Retributivism
V. Conclusion: The Core of Late Retributivism

Chapter Eight: Conclusion: Confronting Penal Excess

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