Can Impartial Proportionality in Criminal Punishment avoid Structural Injustice?

Proportionality and conceptually related horizontal equality are key principles for both criminal sentencing policies and justifying punishment. Applied impartially, these principles protect offenders from prejudice. We consider generalized offenders and intended outcomes when justifying punishment or considering sentencing guidelines. Yet it is particular offenders who are punished. Could impartiality in proportional sentencing contribute to structural injustice, ignoring additional hardships unforeseen from an impartial perspective? We judge criminal cases on their unique circumstances. Offenders must take individual victims as they find them. Likewise, the state should take perpetrators as they find them, recognizing concrete subjects of punishment as particular persons in unique contexts, sometimes disadvantaged by social injustice. The paper argues that structural injustice arises where punishment threatens significant additional hardship for this particular offender, given her existing disadvantage. Social injustice need not make offenders less culpable or blameworthy, or suggest lesser punishment. We can preserve proportionality intuitions in a modified form. Alternative punishments, or differences in how punishment is delivered, need not be lesser (disproportionate) punishments. Yet the state should acknowledge that ignoring relevant differences, including social injustice, risks structural injustice; which in turn may erode the state’s justification for punishment.