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Penal Theory Notes

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PENAL THEORY OVERVIEW Ashworth: The State needs a primary rationale/purpose of sentencing
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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
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Punishment Reduction of crime (including deterrence) Reform and rehabilitation Public protection Reparation

Hart: Mixed theory
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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)
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Punishment is the right of a ruler Punishment must be based on the principle of equality o Sentences should be based on the law of retribution (ius talionis) o 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)
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Offenders are rational individuals who choose to commit crimes "by being punished he is honoured as a rational being" o 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 o Deterrence and rehabilitation can be results of retributive punishment, but not the prime purposes of it

CRITICISM
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Tonry (1993): This conflicts with parsimony and the reduction of suffering o Wouldn't impose the most economical or least severe punishment available Feinberg (1994): Punishment doesn't only affect the offender o 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)
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Sentencing should be primarily concerned with seriousness REJECTS the talionic view of desert theory

Von Hirsch: Past or Future Crimes (1986)
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2 grounds for punishment (bifurcated rationale) o 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" o Censure
 Normative censure is an appeal to moral reasoning

Von Hirsch: Censure and Sanctions (1993)
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Further developed the bifurcated view o 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"
 3rd parties: Gives them a reason to avoid such conduct because it is presented as being morally wrong o 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 o 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 o Rejects the theory that punishment rectifies the "unfair advantage" gained by the offender through offending Why proportionality?
o It is part of "everyday notions of justice" that "penalties should fairly reflect the degree of blame-worthiness of the conduct involved" o Provides some degree of guidance: "penalties should be graded in severity to reflect the gravity of the offences involved" Desert must be applied parsimoniously o 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
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Dingwall (2008): Although the focus has been modified, there is still a need for proportionate or "commensurate" punishments (CJA 2003 s153)

DETERMINING PUNISHMENT
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Ordinal proportionality o 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 o Ranking punishments in relative severity Cardinal proportionality o Relating the ranked offences with the scale of punishment o 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

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