Penal Theory

Overview

Ashworth: The State needs a primary rationale/purpose of sentencing

• Shouldn’t have a single rationale, but giving absolute discretion to sentencers is also inappropriate and inconsistent

• In Sweden, Desert (Proportionality) is the primary rationale except in identified cases

CJA 2003 s142: Court must have regard to the purposes of sentencing

• Punishment

• Reduction of crime (including deterrence)

• Reform and rehabilitation

• Public protection

• Reparation

Hart: Mixed theory

• Utilitarian aim of crime reduction is the General Justifying Aim of punishment, while justice determines who to punish and to what extent

• Criticised by Bageric and Braithwaite: unclear when the GJA can be ignored in favour of other considerations

• VIEW: Neither pure utilitarianism nor pure retributivism can act both as a justification for punishment and for determining the detailed sentence required

Retributivism – desert theory

Classic Retributivism

Kant (1796-7)

• Punishment is the right of a ruler

• Punishment must be based on the principle of equality

  • Sentences should be based on the law of retribution (ius talionis)

  • Anything less would be collaborating in the public violation of justice

• No autonomous creature can be treated as a means for the happiness of others

Hegel (1832)

• Offenders are rational individuals who choose to commit crimes

• “by being punished he is honoured as a rational being”

  • Offenders cannot be treated as animals who must be rendered harmless or deterred and reformed by the system

• No need to have literal equality of punishment, but rather corresponding deserts

  • Deterrence and rehabilitation can be results of retributive punishment, but not the prime purposes of it

CRITICISM

• Tonry (1993): This conflicts with parsimony and the reduction of suffering

  • Wouldn’t impose the most economical or least severe punishment available

• Feinberg (1994): Punishment doesn’t only affect the offender

  • Not only is the effect hard to measure, but it also has effects on the innocent family

• Walker (1991): Exact commensurability is unattainable, proportionality is a “ladder with rungs that are both sliding and elastic” in order to consider culpability

Modern Retributivism

Von Hirsch: Doing Justice (1976)

• Sentencing should be primarily concerned with seriousness

• REJECTS the talionic view of desert theory

Von Hirsch: Past or Future Crimes (1986)

• 2 grounds for punishment (bifurcated rationale)

  • Crime prevention

    • This avoids the absolutist view that punishment is required for censure even if it served no preventive purpose (as pointed about by Kant)

    • The hard treatment “registers disapprobation”

  • Censure

    • Normative censure is an appeal to moral reasoning

Von Hirsch: Censure and Sanctions (1993)

• Further developed the bifurcated view

  • Moral (normative) censure was now seen as the primary purpose of punishment

    • Victim: Acknowledges that the perpetrator caused harm to the victim

    • Perpetrator: Conveys “disapprobation of the person punished”

    • 3^rd parties: Gives them a reason to avoid such conduct because it is presented as being morally wrong

  • Hard treatment provides a “prudential reason that is tied to, and supplements, the normative reason conveyed by penal censure”

    • Ashworth and Von Hirsch (2005): Punishment has a secondary preventive role via hard treatment, but is justified by normative retributivism

  • People are neither angels (normative censure would suffice) nor beasts (only hard treatment would be effective), so both are needed

• Censure is part of recognizing the offender’s moral autonomy

  • Rejects the theory that punishment rectifies the “unfair advantage” gained by the offender through offending

• Why proportionality?

  • It is part of “everyday notions of justice” that “penalties should fairly reflect the degree of blame-worthiness of the conduct involved”

  • Provides some degree of guidance: “penalties should be graded in severity to reflect the gravity of the offences involved”

• Desert must be applied parsimoniously

  • Proportionality can be used to scale penalties down

• Ashworth and Von Hirsch (2005): Allow for “limited deviations” to achieve other pressing objectives of punishment

• Success of desert theory depends on whether the punishment is accurately scaled to the crime, not by the amount of crime reduction

• Bottoms: This is a type of “forward-looking communicative theory of punishment”

CJA 1991: placed an emphasis on proportionality in sentencing

• Dingwall (2008): Although the focus has been modified, there is still a need for proportionate or “commensurate” punishments (CJA 2003 s153)

Determining punishment

• Ordinal proportionality

  • Ranking offences in relative seriousness to each other

    • Wolfgang’s studies suggest that people have largely similar intuitive ranking of offence seriousness, with some contentious issues

  • Ranking punishments in relative severity

• Cardinal proportionality

  • Relating the ranked offences with the scale of punishment

  • Von Hirsch: Excessively harsh punishments can be avoided by choosing the right anchoring point

    • Limited by basic human rights

    • Should use the lowest sentence which satisfies desert (but not just in order to save costs, which is the utilitarian view)

• Jareborg and Von Hirsch: Seriousness and severity can be determined according to the “living standard” framework in terms of the impact on important interests

  • Severity is not a matter of “subjective unpleasantness”

  • ISSUE (Walker): Sentencing SHOULD take into account individual sensitivity

• Von Hirsch (1993): A desert model “permits reliance on other factors (including those of crime prevention) for some purposes—e.g. for deciding among sanctions of comparable onerousness”

Ashworth: Even opponents to this theory agree that wholly disproportionate sentences are unacceptable, so this is relevant at least in determining broad ranges

Norval Morris’ limiting retributivism

• Proportionality sets the outer boundaries by determining what is disproportionate

  • So that even if...

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