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It is not the case that Retributivists who fail to consider variation in offenders' actual or anticipated experiences of punishment are punishing disproportionally.
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Reasons For
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Reason for 1 of 2
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1.
Punishment severity is properly measured by the objective deprivation imposed, not subjective experience, ensuring equal treatment under law.
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2.
Incorporating subjective experience into sentencing creates arbitrary disparities based on morally irrelevant personal characteristics.
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3.
Moore and Kant ground proportionality in the gravity of the offense itself, not in the offender's psychological constitution.
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Reason for 2 of 2
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1.
Practical epistemic limitations make reliable assessment of anticipated subjective experience of punishment systematically impossible.
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2.
A proportionality standard that cannot be reliably operationalized fails as a workable principle of justice, per Hart's demand for institutional feasibility.
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Reasons Against
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Reason against
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1.
Retributivists who fail to consider variation in offenders' actual or anticipated experiences of punishment are not measuring punishment severity properly.
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2.
Not measuring punishment severity properly leads to disproportionate punishment.
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