‘Punishment’ in Non-custodial Sentences: A Critical Analysis

Abstract

This paper reviews various uses of the concept of ‘punishment’ in relation to non-custodial sentences, including the frequently-made comparison between ‘punishment’ and ‘rehabilitation’. It concludes that ‘punishment’ has no stable meaning in respect of such sentences and, when utilised, often results in non-custodial penalties being found wanting by comparison with imprisonment. It is suggested that all sentences should be regarded as ‘punishments’, and that the creative development of community penalties will best be achieved by working with a threefold conceptualisation of reparation, rehabilitation and incapacitation, set within appropriate boundaries of proportionality.