To what extent should criminal sentencing take into account the effect on the perpetrator's family?

Zefeng Li

International Journal of Law, Policy & Society, 2026, vol. 2, issue 2, 14-22

Abstract: The imprisonment of offenders frequently imposes substantial social, emotional, and economic burdens on innocent dependent family members, particularly children who rely on the incarcerated individual for care and financial support. This paper critically examines whether such foreseeable family hardship should be recognized as a mitigating factor in criminal sentencing decisions. Drawing on established theories of punishment, existing sentencing practices across multiple jurisdictions, and relevant legal scholarship, the paper argues that family hardship should be taken into account only when imprisonment is not strictly necessary to achieve the legitimate aims of punishment. It contends that non-custodial measures may, in appropriate cases, satisfy the core objectives of retribution, deterrence, rehabilitation, and public protection while simultaneously avoiding unnecessary harm to innocent dependents. The paper also systematically addresses major objections concerning equality before the law and fairness to victims, arguing that family circumstances should influence the selection among proportionate sentencing options rather than reduce the offender's underlying culpability. Furthermore, it proposes a practical threshold framework for considering family hardship in sentencing, requiring that the offender serve as an essential caregiver or provider, that the anticipated harm to dependents be both serious and foreseeable, and that a non-custodial sentence can effectively fulfill the purposes of punishment. The paper concludes that criminal sentencing should acknowledge the interests of innocent dependents to a limited but meaningful extent while preserving the fundamental principles of justice and proportionality.

Keywords: criminal sentencing; family hardship; imprisonment; mitigating factors; dependent children; non-custodial punishment (search for similar items in EconPapers)
Date: 2026
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Persistent link: https://EconPapers.repec.org/RePEc:dba:ijlpsa:v:2:y:2026:i:2:p:14-22

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