Lifting the Veil of Ignorance: Prison Cruelty, Sentencing Theory, and the Failure of Liberal Retributivism

By  Netanel Dagan and Shmuel Baron

Criminologists have criticized the gap between retributive theory and prison realities. In this study, we drew on qualitative findings from the Supreme Court judges of Israel to explore how judicial decision-makers construct the relationship between their retributive theory and their vision of prison life. We found that these judges perceived prison to be a disproportionate and cruel punishment. In responding to prison excessiveness, these judges constructed a “veil of ignorance” between the phases of sentencing and imprisonment by (a) re-theorizing retribution; (b) closing the gap between sentencing and prison, and (c) neutralizing responsibility. The findings shed light on the judiciary’s epistemology of prisons and its meaning for their retributive theory. In conclusion, the boundaries of retributive scholarship should be expanded to include more fully the problematic meaning of prison cruelties for judges’ philosophies and consciousness.

Critical Criminology, 2025, 18p.