Proportionality, Censure, and the Principles of Sentencing
by
Andrew von Hirsch
1. Introduction: The Emergence of the Proportionate Sentence
In this essay, I wish to provide an overview of a theory of criminal sanctioning that emphasises
proportionality – the degree of seriousness of the criminal offence – in deciding the severity of
the offender’s sentence. This approach needs a supporting rationale, and the rationale I shall
discuss herein is sometimes (especially in English-language discussion) referred to as the ‘desert
rationale’. ‘Desert’, literally is simply that which is deserved, and a variety of reasons (including
traditional notions of retribution) might be offered on why offenders deserve punishments. The
‘desert perspective’ which I shall be defending here, however, is a newer, rather than a
traditional account; it is one which has had considerable influence in contemporary penology,
and which I have been involved in helping to develop over the last two-and-a-half decades.
Stated very briefly, this desert rationale contains two main elements. The first is a
criterion for deciding the comparative severity of sentences, to wit: the principle of
proportionality, according to which the sentence should be fairly proportionate to the seriousness
of the defendant’s criminal conduct. The second is a suggested conceptual basis for this
principle: one that rests in punishment’s role of conveying censure or blame of a person, deemed
capable of moral agency, for his or her misconduct.
The groundwork for this desert perspective was laid in the post-World War II literature
of analytical moral philosophy. These writings supplied a principled critique of purely
instrumental ways of thinking about social and penal issues, suggesting how such reckonings
were capable of sacrificing individual rights to serve majority interests.1 The philosophical
literature also began exploring the notion of desert, suggesting how it constitutes an integral part
of everyday moral judgements.2
The movement towards a proportionality-based conception of sentencing began, perhaps,
in 1971, with the publication of the Quaker-sponsored American Friends Service Committee
report, Struggle for Justice (1971).3 The report recommended moderate, proportionate
punishments, and opposed deciding sentence severity on predictive or rehabilitative grounds.
The Friends Committee report did not rely explicitly on the idea of desert as the basis for its
proposals; that was left to subsequent writings, including the Australian philosopher John
Kleinig’s Punishment and Desert (1973),4 and my own Doing Justice (1976).5 A number of
influential Scandinavian, British and German penologists have since contributed to this
literature, including Nils Jareborg, A.E. Bottoms, Andrew Ashworth, R.A. Duff, Bernd
Schuenemann and Tatjana Hoernle.6 The present essay is designed to summarise recent writing
in this area,7 including my own more recent work.8
The notion of deserved sentences in modern penological theory has had a curious history,
of first being ignored, and then suddenly becoming quite influential. Judges, as a matter of
1
See, e.g., Williams 1973.
2
See, Armstrong 1961; H. Morris 1968.
3
American Friends Service Committee 1972.
4
Kleinig 1973.
5
von Hirsch 1976.
6
Jareborg and von Hirsch 1987; von Hirsch and Jareborg 1991; Ashworth 1989; Bottoms 1989; Bottoms 1998; Duff
1986; Duff 2000; Schuenemann 1987; Hoernle 1999.
7
8
A number of recent essays on desert theory are collected in Ashworth and Wasik 1998.
Particularly, von Hirsch 1993; see also, Hoernle and von Hirsch 1995; von Hirsch 1999.
1
practice, have long based their sentences to a considerable extent upon the degree of seriousness
of the defendant’s crimes. Philosophers, for centuries, debated retribution as possible grounds
for punishment. In sentencing theory, especially in English-speaking countries, however, notions
of desert were scarcely spoken of seriously; writers either ignored the idea, or dismissed it as
obsolete, vindictive or obscure.
Desert theorists, beginning in the mid-1970s, argued that desert, far from being arcane or
reactionary, is a fundamental principle of justice in sentencing. Once broached, the idea of the
proportionate sentence quickly became influential in academic penological discussion; and has
influenced sentencing-reform efforts in several jurisdictions, including Oregon and Minnesota in
the U.S.; England (since 1991), and in the Nordic countries, Finland and Sweden.
This developing desert literature addressed two objections that traditionally had been
made to retributive ideas. One objection was that deserved punishment was somehow
incomprehensible, that it rested on ‘metaphysical’ notions of requiting evil for evil
(‘Vergeltung’) or the like. Desert theorists provided an alternative explanation, grounded in the
familiar logic of everyday ethical discourse. Punishments, they pointed out, is a blaming
institution. The difference between a criminal and a civil sanction lies generally in the fact that
the former conveys blame or censure of the actor. Fairness requires that penalties be allocated
consistently with their blaming implications. The severity of the punishment (and thereby the
amount of censure visited on the actor) should comport with the degree of blameworthiness –
that is, the seriousness, of the defendant’s conduct. Disproportionate or disparate punishments
are unjust, not because they fail to requite suffering with suffering, but because they treat
offenders as comparatively more or less worthy of censure than the reprehensibleness of their
conduct warrants.
The other objection was to the seeming harshness of retributive punishment, to its
possible exaction of an eye for an eye. These theorists’ response was that desert did not demand
visitation of suffering equal to the harm done. What was required, instead, was punishments that
were proportionate to the seriousness of the criminal conduct. Proportionate punishments could
be levied without increasing (indeed, while decreasing) the prevailing severity levels, as long as
penalties were ordered to reflect crimes’ comparative seriousness.
2. Censure and Penal Desert
There have been a variety of retributive or desert-based accounts of punishment, ranging from
intuitionist theories, to talionic notions of requiting evil for evil, to conceptions that see
punishment as taking away the ‘unjust advantage’ over others which the offender obtains by
choosing to offend.9 The desert-based conception discussed here, however, relies on a different
account: one emphasising the communicative features of punishment.
The criminal sanction censures: punishing consists of doing something unpleasant to
someone, because he purportedly has committed a wrong, under circumstances and in a manner
that conveys disapprobation of the person for his wrong. Treating the offender as a wrongdoer is
central to the idea of punishment. The difference between a tax and a fine, for example, does
not rest in the material deprivation imposed – which is money in both cases. It consists, rather,
in the fact that with the fine, money is taken in a manner that visits disapprobation; whereas with
a tax, no disapproval is implied.
A sanction that treats the conduct as wrong – that is, not a ‘neutral’ sanction – has two
important moral functions that are not reducible to crime prevention.10 One is to recognise the
9
For a description and critique of the unjust-advantage account, see Duff 1986, ch.8.
10
This view of censure was originally developed in von Hirsch 1993, ch. 2; Narayan 1993; and is set forth in
systematic form in von Hirsch 2002a. For interesting further commentary, see Bottoms 1998, 77-95.
2
importance of the rights that have been infringed. The censure in punishment conveys to victims
and potential victims the acknowledgement that they are wronged by criminal conduct, that
rights to which they properly are entitled have been intruded upon. The other (still more
important) role of censure is that of addressing the offender as a moral agent, by appealing to his
or her sense of right and wrong. Any human actor, this communicative perspective suggests,
should be treated as a person capable (unless mentally incompetent) of evaluating others’
assessment of their conduct. A response to criminal wrongdoing that involves censure gives the
individual the opportunity to respond in ways that are typically those of an agent capable of
moral deliberation: to recognise the wrongfulness of the action; feel remorse; to make efforts to
desist in future – or to try to offer reasons why the conduct was not actually wrong. What a
purely ‘neutral’ sanction not embodying blame would deny, even if no less effective in
preventing crime, is precisely this recognition of the person’s status as a moral agent. A neutral
sanction would treat offenders and potential offenders much as dangerous beasts – as beings
which merely can be restrained, intimidated or conditioned into submission.
Relying on this idea of censure helps remove some of the seeming mysteriousness of
penal desert judgements: censure or blaming involves everyday moral judgements used in a wide
variety of social contexts, of which punishment is merely one. This account also helps address
another objection traditionally raised against retributive penal theories, namely, their seeming
harshness – their apparent insistence on an eye for an eye. Once the paying back of evil for evil
is not seen as the underlying idea, penal desert does not demand visitation of suffering
equivalent to the harm done. What is called for instead is punishments that are proportionate to
the seriousness of the criminal conduct. Proportionate punishments, even if not involving harmfor-harm equivalence, would suffice to convey blame for various crimes according to their
degree of reprehensibleness. Indeed, several advocates of the desert perspective (including
myself) have advocated substantial reductions of penalty levels.11
Can the institution of punishment be explained purely in terms of censure? Punishment
does convey blame, but does so in a special way – through visitation of deprivation (‘hard
treatment’) on the offender. That deprivation is the vehicle through which the blame is
expressed. But why use this vehicle, rather than expressing blame in purely a symbolic fashion?
A reason for thus having the institution of punishment – that is, for expressing
disapproval through the infliction of hard treatment instead of merely censuring – has to do with
keeping predatory behaviour within tolerable limits. Had the criminal sanction no usefulness in
preventing crime, there should be no need to visit deprivations on those who offend. True, we
might still wish to devise another way of issuing authoritative judgements of blaming, for such
predatory behaviour as occurs. But those judgements, in the interest of keeping state-inflicted
suffering to a minimum, would no longer be linked to purposive infliction of suffering.
If the criminal sanction thus serves to prevent crime as well as censure, how is this
consistent with treating offenders and potential offenders as moral agents? The hard-treatment
in punishment, in my view, serves a prudential reason for obedience to those insufficiently
motivated by the penal censure’s moral appeal. But this should supplement rather than replace
the normative reasons for desisting from crime conveyed by penal censure – that is, it provides
an additional reason for compliance to those who are deemed capable of recognising the law’s
moral demands, but who are also tempted to disobey them. The law thus addresses ourselves,
not a distinct ‘criminal’ class of those considered incapable of grasping moral appeals. And it
addresses us neither as perfectly moral agents (we are not like angels), nor as beasts which only
can be coerced through threats; but rather, as moral but fallible agents who also may need
prudential inducements to help us resist criminal temptation.12 However, this account (as will be
11
12
See section 4 of this essay , and von Hirsch 1993, ch. 5; Ashworth 1989.
von Hirsch 1993, ch. 2; von Hirsch 2002a.
3
discussed below) calls for moderation in the overall severity in punishment levels. The harsher
the penalty system is, the less plausible it becomes to see it as embodying a moral appeal rather
than a system of bare threats.
3. The Rationale for Proportionality
In a minimal sense, proportionality always had a role in sentencing policy: penalties that are
grossly excessive in relation to the gravity of the offence are deemed as unfair. Statutory
maximum sentences reflect that understanding, and it also has a constitutional dimension: some
jurisdictions have adopted a constitutional bar against grossly excessive punishments.13 This
alone, however, would give the notion of proportionality only an outer, constraining role, of
barring draconian sanctions for lesser offences.
What is distinctive about contemporary desert theory is it moves the notion of
proportionality from such a peripheral to a central role in deciding the severity of penalties. The
primary basis for deciding quanta of punishments, on this theory, should be the principle of
proportionality – requiring the severity of the penalty to be proportionate to the gravity of the
defendant’s criminal conduct.
The concept of proportionality of which I am speaking is different from the idea of
‘proportionality’ that is used in human-rights jurisprudence. The latter idea is prospectivelyoriented and concerned with the suitability of means to ends: an intervention is thus deemed
‘disproportionate’ if it uses highly burdensome or intrusive means to achieve ends of
comparatively little importance.14 Proportionality in sentencing theory is concerned not with this
prospective means-ends relationship, but operates retrospectively. It concerns the relationship
between the severity of the punishment and the gravity of the criminal conduct of which the
defendant has been convicted.
What is the basis for this (retrospective) principle of proportionality? The censure
account, just referred to, provides the explanation. If punishment embodies blame, then the
degree of severity imposed will convey how much the conduct is condemned. If crime X is
punished more severely than crime Y, this connotes the greater disapprobation of crime X.
Punishments, consequently, should be allocated consistently with their blaming implications.
When penalties are arrayed in severity according to the gravity of offences, the degree of
disapprobation thereby conveyed will be consistent with the degree of reprehensibleness of the
conduct. When punishments are arrayed otherwise, this is not merely inefficient (who knows? –
it might sometimes ‘work’), but unfair; offenders would be visited with more or less censure
than the comparative blameworthiness of their conduct would warrant.15
Equity is sacrificed when the proportionality principle is disregarded, even when this is
done for the sake of crime prevention. Suppose that offenders A and B commit and are convicted
of criminal conduct of approximately the same degree of seriousness. Suppose B is deemed
more likely to reoffend, and therefore is given a longer sentence. Notwithstanding the possible
preventative utility of that sentence, the objection remains that B, through his more severe
punishment, is being treated as more to blame than A, though their conduct has the same degree
of blameworthiness.
4. Proportionality as ‘Limiting’ or ‘Determining’?
If the principle of proportionality is so important, is it a ‘determining’ or merely a ‘limiting’
13
The German constitutional court, for example, has interpreted the Grundgesetz as imposing such a ban.
14
See Cameron 1998, 83-4.
15
See more fully, von Hirsch 1993, 15-17.
4
principle? While our sense of justice tells us that criminals should be punished consistently with
the seriousness of their offences, there do not seem to be definite quanta of severity associated
with our desert-judgements. Armed robbers have committed a serious offence, deserving of
substantial punishment, but it is not apparent whether that should consist of two years’
confinement, three years, or some shorter or longer period.
One response to this problem has been to assert that desert is merely a ‘limiting’
principle:16 It tells us, supposedly, not how much robbers deserve, but only some broad limits
beyond which their punishments would be undeserved. Within such limits, the sentence can be
decided on other grounds (for example, on grounds of the individual defendant’s estimated
degree of risk of reoffending). This view, however, would mean that persons who commit
similar crimes could receive quite different amounts of punishment. If punishment embodies
blame as a central characteristic, it becomes morally problematic to visit such different degrees
of severity, and hence of implicit blame, on comparably blameworthy transgressions.
A conceivable opposite response, but scarcely a plausible one, would be a heroic
intuitionist stance: that if we only reflect enough we will perceive deserved quanta of
punishments: that robbers ordinarily deserve so-and-so many months or years of confinement,
and so forth. Our intuitions, however, hardly seem so definite.
The way out of this apparent dilemma is to recognise the crucial difference between the
comparative ranking of punishments on one hand, and the overall magnitude and anchoring of
the scale of penalties on the other. With respect to comparative rankings, ordinal
proportionality provides considerable guidance: persons convicted of similar criminal conduct
should receive punishments of comparable severity (save in special aggravating or mitigating
circumstances altering the harm or culpability of the conduct); and persons convicted of crimes
of differing gravity should suffer punishments correspondingly graded in onerousness. These
ordinal-proportionality requirements are no mere limits, and they are infringed when equally
reprehensible conduct is punished unequally.17
Desert provides less guidance, however, about the overall dimensions and anchoring
points of the scale of penalties. This is because the censure expressed through penal
deprivations is, to a degree, a convention. When the penalty structure reflects the comparative
gravity of crimes, making pro rata decreases or increases in the prescribed sanctions may
represent just a change in that convention.
This distinction helps resolve the dilemma just mentioned. The leeway which desert
allows in fixing the penalty system’s overall degree of onerousness – its ‘repressionsniveau’ –
explains why we cannot perceive a single right or fitting penalty for a crime. Whether x months,
y months, or somewhere in between is the appropriate penalty for a typical armed robbery
depends on how the penalty structure has been anchored and what punishments are prescribed
for other crimes. Once those anchoring points are decided, however, the more restrictive
requirements of ordinal proportionality apply. This explains why it would be inappropriate to
give short prison terms to some robbers and long ones to other robbers, on the basis (say) of
predictive factors not reflecting the degree of seriousness of the criminal conduct.
Does this purported solution still leave the anchoring of the scale too wide open? Could
it not permit a quite severe penalty scale, as long as it is proportionately graded, and is not so
harsh as to impose drastic penalties on manifestly trivial crimes? My suggested answer to this
question has been that high overall severity levels are inconsistent with the moral functions of
penal censure. Through punishments’ censuring features, the criminal sanction offers a
normative reason for desistance that can be offered to human beings seen as moral agents: that
16
This view has been identified with the writings of Norval Morris; see Morris 1976; Morris 1982, ch. 5.
17
von Hirsch 1993, 17-19.
5
doing certain acts is wrong and hence should be refrained from. Punishments’ material
deprivations can then be viewed (as noted above) as providing a supplemental disincentive – as
providing humans (given human fallibility and the temptations of offending) an additional
prudential reason for complying with the law.18 The higher penalty levels rise, however, the less
significant can be the normative grounds for desistance supplied by penal censure, and the more
dominant the system’s purely threatening aspects become (in Hegel’s apt words, a stick that
might be raised to a dog). To the extent this argument is accepted, it points toward keeping
penalties at moderate levels.19
5. Gauging Crimes’ Seriousness and Severity
The rank-ordering requirement of proportionality presupposes a capacity to grade crimes
according to their seriousness. The seriousness of crime has two main elements: the degree of
harmfulness (or risk of harm) of the conduct, and the extent of the actor’s culpability. With
respect to culpability, the substantive criminal law can help – because its theories of fault have
analogues for sentencing. The substantive criminal law already distinguishes intentional (i.e.,
purposive, knowing or reckless) conduct from negligent behaviour. Sentencing law could make
fuller use of distinctions of this kind, although those implications have yet to be spelled out
much detail.
With harm, the problem has been to compare the degree of injuriousness of criminal acts
that invade different interests – to compare takings of property with, say, invasions of privacy.
Here, a broad notion of quality of life can be helpful: invasions of different interests can be
compared according to the extent to which they typically affect a person’s standard of living –
understood in the broad sense of that term, including non-economic as well as economic well
being.20 Such an analysis facilitates comparisons: burglary and assault may affect different
interests, but they nevertheless may be compared in their impacts on a standard person’s quality
of life.21
The living-standard idea can also be helpful in comparing the severity of various
penalties. Severity can be gauged – not in terms of individual offenders’ varying sensitivities –
but rather in terms of how different penalties typically affect the quality of an offender’s life.22
6. Role of Prior Criminal Convictions
Another issue that has concerned desert theorists has been the role of an offender’s prior
criminal convictions. Most penal systems do adjust the severity of the sanction to reflect the
defendant’s criminal history, but it has been a matter of controversy how much weight the
criminal record should have, and why. A predictive rationale for sentencing would give
principal emphasis to prior arrests and convictions, as that is the factor most strongly correlated
with future offending.23 A desert theory, by contrast, would accord principal weight to the
18
von Hirsch 1993, 9-15; see more fully, von Hirsch 2002a.
19
See more fully, von Hirsch 1993, ch. 5.
20
This living-standard analysis of criminal harm was developed in von Hirsch and Jareborg 1991. The analysis
draws on the conception of the living-standard conceived by the philosopher and economist Amartya Sen; Sen 1987.
21
This method of analysis is described in systematic fashion in von Hirsch and Jareborg 1991, and more briefly in
von Hirsch 1998, ch. 4; and von Hirsch and Ashworth 1998, 220-32.
22
23
See more fully, von Hirsch 1993, 33-35.
See Panel on Research on Criminal Careers 1986; von Hirsch 1985, ch. 11.
6
gravity of the current offence; that is, indeed, a salient operational difference between
prediction-based and desert-based schemes. But the question remains whether the record should
be given any weight, and if so how much.
Some desert theorists, including myself, have argued for a modest adjustment for the
prior record – in the form of a limited penalty discount for first offenders or for those with only
modest records.24 This can be seen as a way of recognising human fallibility in the criteria for
punishment. By giving the first offender a somewhat scaled-down punishment, the first offender
is censured for his act but nevertheless accorded some moral respect for the fact that his
inhibitions against wrongdoing appear to have functioned on prior occasions, and some
sympathy or tolerance for the all-too-human frailty that can lead to such a lapse.25 With
repetition, however, this extenuation diminishes and eventually is lost. While this view permits
a limited differentiation to be made on the basis of prior convictions, the primary emphasis
would remain on the gravity of the current offence.
7. Inclusion of Crime-Control Aims?
Desert theory sets priorities among sentencing aims: it assumes that it is more important to have
proportionately ordered sanctions than to seek other objectives – say, incapacitating those
deemed higher risks. This understandably evokes discomfort: why cannot one seek
proportionality and pursue other desired ends, whether they be treatment, incapacitation or
deterrence?
To some extent, a desert model permits consideration of other aims: namely, to the
degree this is consistent with the proportionate ordering of penalties. Thus when there is a
choice between two non-custodial sanctions of approximately equivalent severity,
proportionality constraints are not offended when one of these is chosen over the other on (say)
treatment grounds. Desert theorists thus have come forward with schemes for utilising
intermediate, non-custodial penalties; these sanctions would be ranked in severity according to
the gravity of the crime, but penalties of roughly equivalent onerousness could be substituted for
one another when rehabilitative concerns so indicate.26 Nevertheless, a desert model remains a
constraining one: ulterior aims may be relied upon only where these do not substantially alter the
comparative severity of penalties. Giving substantial extra prison time to persons deemed high
risks would thus breach the model’s requirements. Why not, then, relax the model’s constraints
to allow greater scope to such other aspirations?
A possibility –sometimes referred to as a ‘modified’ desert model – would be to relax the
constraints to a limited degree. Proportionality would primarily determine comparative
punishment levels, but modest deviations from the deserved sentence would be deemed
permissible. While even small departures involve a sacrifice of equity, the extent of that
sacrifice depends on the degree of the deviation from desert constraints. Limited deviations,
arguably, would permit the pursuit of ulterior objectives without ‘too much’ unfairness.27
These mixed approaches still make desert the primary determinant for the ordering of
penalties, but give some extra scope for ulterior purposes. Even such schemes remain somewhat
constraining, however; some extra leeway might be granted, say, to suit a non-custodial penalty
to the offender’s apparent treatment needs, but not a great deal.
Could still more scope be given to non-desert considerations? In a mixed rationale,
24
See Ashworth 2000, ch. 6; Wasik 1987.
25
26
This theory is sketched more fully in von Hirsch and Ashworth 1998, 233-240.
von Hirsch 1993, ch. 7.
27
See more fully, von Hirsch 1993, ch. 6, 54-56.
7
either desert will predominate or something else will. If – in the ordinary case – the seriousness
of the crime is the penalty’s primary determinant, the system remains desert-dominated. If other
(say, crime-preventive) aims are given primary emphasis, however, that creates a system
dominated by those aims. That will re-introduce the familiar problems of consequentialist
sentencing schemes – for example, those relating to inequitable outcomes, and to insufficient
systematic knowledge of preventive effects.28
In assessing these alternatives, it needs to be borne in mind that even a ‘purely’ desertbased sentencing scale is likely to have collateral crime-prevention benefits – in whatever
deterrence its penalties achieve, and in the possible incapacitative effects of the prison sentences
it prescribes for serious crimes. Departing from proportionality for the sake of crime prevention,
then, will call not just for a showing that preventative effects might be achieved (for a desertbased system may achieve these too); but that the departures are likely to yield enhanced
preventative effects – which is no easy matter to establish. And here, one is likely to confront a
fairness/effectiveness trade-off: because crime rates tend to be rather insensitive to small
variations in punishment, modest departures from proportionality are likely to have relatively
little impact; large departures might conceivably work better, but these precisely are the ones
that are most troublesome on fairness grounds.
8. Desert and Penal Severity
Does desert lead to hard to harsher penalties? As the theory emerged and became influential at a
time when penalty levels rose in many jurisdictions, some critics have argued that the theory
must in part be responsible for such increases.29 However, desert theory itself does not require
harsher penalties – indeed, as noted earlier, already, it permits (indeed, points toward)
considerable penalty reductions.30 Moreover, the sentence-reform schemes which rely explicitly
on notions of desert tend not to be severe ones: the Minnesota and Oregon sentencing
guidelines, for example, call for penalties that are well below prevailing U.S. norms.31 European
proportionality-oriented sentencing standards, such as those of Finland and Sweden, are likewise
associated with penal moderation.32 Measures which most clearly call for tougher sanctions tend
to utilise criteria inconsistent with proportionality: mandatory sentences, for example, select
particular offence categories for harsh treatment, without regard to the gravity of the offence
involved, or the penalties imposed for other kinds of offences.33
9. Desert and Social Deprivation
Many offenders live in grim social environments that restrict their opportunities for living
tolerable and law abiding lives. Should such persons be punished differently? The penal law is
a poor instrument for rectifying social ills: it is social policy, rather than criminal policy, that is
the appropriate instrument for addressing problems of social deprivation. But when social policy
28
For the limitations of our knowledge of the crime-preventive effects of sentencing policies, see generally von
Hirsch and Ashworth 1998, chs. 1-3.
29
Christie 1993, 60.
30
See sec. 4 of this essay and, more fully, von Hirsch 1993, ch. 5.
31
von Hirsch 1995.
32
Jareborg 1995.
33
See von Hirsch 1993, ch. 10; von Hirsch and Ashworth 1998, ch. 9.
8
fails to alleviate poverty and deprivation, how should the deprived offender be sentenced?34
It has been pointed out that desert theory at least does not add to the punishment imposed
on deprived persons – whereas penal consequentialism would do so, to the extent that social
deprivation is a sign (say) of greater likelihood of offending.35 But the question remains whether
such persons deserve reduced punishments. Arguably, reductions could be warranted on
grounds of reduced culpability – in view of the greater obstacles such persons face in leading
law-abiding lives.36 Granting such mitigation would, however, create a host of practical and
political difficulties37 – so that the issue continues to be a perplexing one.
This issue of ‘just deserts in an unjust society’ was first raised by the American philosopher Jeffrie Murphy
(Murphy 1973).
34
35
von Hirsch 1976, ch. 17.
von Hirsch 1993, 106-08; Gardner 1976; Hudson 1998. An alternative, ‘compassion-based’ ground for mitigation
is discussed in von Hirsch 2002b.
36
37
See von Hirsch 1993, 108; von Hirsch 2002b, 328-331.
9
References
American Friends Service Committee (1972). Struggle for Justice. New York: Hill and Wang.
Armstrong, K.G. (1961). ‘The retributivist hits back.’ Mind 70:471.
Ashworth, Andrew (1989). ‘Criminal justice and deserved sentences.’ Criminal Law Review
[1989]: 340.
–– (2000). Sentencing and Criminal Justice, 3rd ed. London: Butterworths.
–– and M. Wasik, eds (1998). Fundamentals of Sentencing Theory: Essays in Honour of
Andrew von Hirsch. Oxford: Oxford University Press.
Beccaria, Cesare (1963). Of Crimes and Punishments.
Indianapolis: Bobbs-Merill.
Translated by Henry Paolucci.
Bottoms, A.E. (1989) ‘The concept of intermediate sanctions and its relevance for the probation
service’. In The Criminal Justice System: A Central Role for the Probation Service, edited by E.
Shaw and K. Haines. Cambridge: Institute of Criminology, 1989.
–– (1998). ‘Five puzzles in von Hirsch’s theory’. In Fundamentals of Sentencing Theory:
Essays in Honour of Andrew von Hirsch, edited by A. Ashworth and M. Wasik (see above), ch.
3.
Cameron, Iain (1998). An Introduction to the European Convention on Human Rights. 3rd ed.
Uppsala: Iustus Förlag.
Christie, Nils (1993). Crime Control as Industry. London: Routledge.
Duff, R.A. (1986) Trials and Punishments . Cambridge: Cambridge University Press.
–– (2000). Punishment, Communication and Community. New York: Oxford University Press.
Hoernle, T. (1999). Tatproportionale Strafzumessung. Berlin: Duncker und Humblot.
––, and Andrew von Hirsch (1995). ‘Positive Generalprävention und Tadel’. In Goltdammers
Archiv für Strafrecht 142:261. Reprint, Schunemann, von Hirsch and Jareborg, eds., Positive
Generalprävention, (below), pp. 83-100.
Jareborg, Nils (1995). ‘The Swedish sentencing reform’. In The Politics of Sentencing Reform,
edited by C.M.V. Clarkson and R. Morgan. Oxford: Oxford University Press.
––, and Andrew von Hirsch (1987). ‘Straff och proportionalitet’ Nordisk Tidsskrift for
Kriminalvidenskab 74:56.
Kleinig, John (1973). Punishment and Desert. The Hague: Nijhoff.
Morris, Herbert (1968). ‘Persons and punishment’. The Monist 52: 475.
10
Morris, Norval (1976). Punishment, Desert, and Rehabilitation.
Government Printing Office.
Washington D.C.: US
–– (1982). Madness and the Criminal Law. Chicago: University of Chicago Press.
Murphy, Jeffrie (1973). ‘Marxism and retribution’. Philosophy and Public Affairs 2: 217-43.
Narayan, Uma (1993). ‘Adequate responses and preventive benefits: justifying censure and hard
treatment in legal punishment’. Oxford Journal of Legal Studies 13: 166.
Panel on Research on Criminal Careers (1986). ‘Report’. In Criminal Careers and ‘Career
Criminals’ edited by A. Blumstein, J. Cohen, J. Roth and C. Visher, vol.1. Washington D. C.:
National Academy Press.
Schuenemann, Bernd (1987). ‘Plaedoyer fuer eine neue Theorie der Strafzumessung’. In Neuere
Tendenzen der Kriminalpolitik, edited by K. Cornils and A. Eser. Freiburg: Max Planck Institut.
Sen, Amartya (1987). The Standard of Living. Cambridge: Cambridge University Press.
von Hirsch, Andrew (1976). Doing Justice: The Choice of Punishments. New York: Hill and
Wang. Reprint, ed., Boston: Northeastern University Press, 1986.
–– (1985). Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of
Criminals. New Brunswick, N. J.: Rutgers University Press. U.K. edition, Manchester:
Manchester University Press, 1986.
–– (1993). Censure and Sanctions. Oxford: Oxford University Press.
–– (1995). ‘Proportionality and parsimony in American sentencing guidelines: The Minnesota
and Oregon standards’. In The Politics of Sentencing Reform, edited by C.M.V. Clarkson and R.
Morgan, 149-198. Oxford: Oxford University Press.
–– (1999). ‘Punishment, penance and the state: a reply to Duff’. In Punishment and Political
Theory, edited by Matt Matravers, ch. 4. Oxford: Hart Publishing.
–– (2002a) ‘ Why should criminal sanctions exist?’ Lecture before the Constitutional Tribunal of
Poland, April 9, 2002. Warsaw: Constitutional Tribunal.
––(2000b) ‘Proportionate Punishment and Social Deprivation’. In Flores Juris et Legum:
Festskrift till Nils Jareborg, edited by P. Asp, L. Holmqvist, et al., 319-332. Uppsala, Sweden:
Iustus Forlag.
––, and Andrew Ashworth, eds. (1998). Principled Sentencing, 2d ed. Oxford: Hart Publishing.
–– and N. Jareborg (1991). ‘Gauging criminal harm: A living standard analysis’. Oxford
Journal of Legal Studies 11: 1.
Wasik, Martin (1987). ‘Guidelines, guidance and criminal record’. In Sentencing Reform:
Guidance or Guidelines?’, edited by M. Wasik and K. Pease. Manchester: Manchester
11
University Press.
Williams, Bernard (1973). ‘A critique of utilitarianism’. In Utilitarianism: For and Against, by
J.J.C. Smart and B. Williams. Cambridge: Cambridge University Press.
12