Andrew von Hirsch

Censure and sanctions

Censure and proportionality dominion and censure (with Andrew Ashworth) seriousness and severity anchoring hybrid models intermediate sanctions penance and personalized desert degradingness and intrusiveness (with Uma Narayan) the politics of proportionality. Epilogue - the aspiration of penal justice.

Determinate Penalty Systems in America: an Overview

Determinate sentencing has generated a great deal of interest over the past several years. The sentencing law and administrative rules in many states have been amended in ways intended to create determinate penalty systems. This article is based on the findings of a survey of these law and rule revisions. The article provides an overview of the various approaches to determinacy and a preliminary assessment of these systems.

The Ethics of Community-Based Sanctions:

The reviving interest in noncustodial penalties makes it urgent to explore the ethical limits on their use. This article explores three kinds of limits: proportionality (desert) constraints, restrictions against humiliating or degrading punishments, and concerns about intrusion into the rights of third parties. In connection with the second of these limits, the concept of “acceptable penal content” is developed.The reviving interest in noncustodial penalties makes it urgent to explore the ethical limits on their use. This article explores three kinds of limits: proportionality (desert) constraints, restrictions against humiliating or degrading punishments, and concerns about intrusion into the rights of third parties. In connection with the second of these limits, the concept of “acceptable penal content” is developed.

The Ethics of Selective Incapacitation: Observations on the Contemporary Debate

With growing attention to “selective incapacitation” strategies, the issue of the fairness of prediction-based sentencing has revived. Some recent advocates of such strategies have argued that predictive sentencing is just, because the criteria for prediction (particularly, the offenders prior criminal history) coincide or overlap with the criteria for deserved punishment. This article contends that such claims are mistaken: that, in fact, the criteria for prediction and for desert differ significantly in the degree of emphasis that may be placed on the prior criminal history, and in the type of information about that history which may appropriately be used. The article also criticizes recent arguments that desert furnishes only broad outer limits on punishments, within which predictive determinations may fairly be used. It is concluded that the tension between selective incapacitation and desert cannot be ignored; and that the use of selective-incapacitation strategies in sentencing entails sacrifices of equity for offenders.With growing attention to “selective incapacitation” strategies, the issue of the fairness of prediction-based sentencing has revived. Some recent advocates of such strategies have argued that predictive sentencing is just, because the criteria for prediction (particularly, the offenders prior criminal history) coincide or overlap with the criteria for deserved punishment. This article contends that such claims are mistaken: that, in fact, the criteria for prediction and for desert differ significantly in the degree of emphasis that may be placed on the prior criminal history, and in the type of information about that history which may appropriately be used. The article also criticizes recent arguments that desert furnishes only broad outer limits on punishments, within which predictive determinations may fairly be used. It is concluded that the tension between selective incapacitation and desert cannot be ignored; and that the use of selective-incapacitation strategies in sentencing entails sacrifices o...

Racial Disparity in Sentencing: Reflections on the Hood Study

This article analyses Roger Hood’s 1992 study of race and sentencing, which found evidence of possible racial discrimination in certain Crown Courts. Examining recent criticisms of the validity of these findings, it is suggested that an adequate threshold of significance was used in the study; that the exclusion of certain status variables did not invalidate the study’s findings; and that the choice of which sentencing variables to control for is ultimately a normative matter. Next, the article considers what steps – other than alleviating discrimination – would be needed to reduce racial imbalance in the prisons. It is argued that little is likely to be gained by seeking to make ‘social adversity’ a basis for sentencing mitigation; and that policies before the sentencing stage would need to be altered instead – for example, those relating to drug-law enforcement.

Responsibility, Retribution and the “Voluntary”: a Response to Williams

The conception of moral responsibility, as Williams describes it, focuses on the “voluntary”. The voluntary, as applied to action, is to be defined roughly as “A does X intentionally and in a normal state of mind“. We have, he argues, good reason to use this conception for certain purposes—in particular, to use it in the context of criminal punishment for the purpose of determining who justifiably may be punished. However, this reason is not to be found either within the conception of moral responsibility itself, or within an understanding of what punishment is or should do: that is, this conception does not guarantee or require its own application; nor do the familiar accounts of punishment (as, e.g. , deterrence or retribution) require that punishments be imposed only for voluntary wrongdoings. Rather, Williams asserts, we should follow H.L.A. Hart in founding the argument for moral responsibility on the value of political freedom: if citizens “should be able to conduct their affairs so far as possible without the states power being unpredictably directed against them”, then punishments “should be applied to [and only to] voluntary agents”.

Review essay / lifeboat law

A. W. Brian Simpson, Cannibalism and the Common Law Chicago: The University of Chicago Press, 1984

Community Orders and the Assessment of Punishment Severity

Cambridge. The 1980s saw an international movement towards the use of desert-based principles in the sentencing of offenders.1 However, attempts in England to accommodate non-custodial penalties within a desert-based sentencing framework have shown that it is far from easy consistently to apply principles of proportionality to a range of community orders which look very different from each other. This paper steps back from the specific English context, which is explored in George Mairs paper in this Issue. Its purpose is to review some of the considerations involved in translating desert theory into practice in relation to non-custodial options, and to examine one particular solution which has been offered.

Book Reviews : Limits to Pain, Nils Christie. Pp. 122. Oslo, Universitetsforlaget (U.S. distributor, Columbia University Press), 1981

Nils Christie, the distinguished professor of Criminology at the University of Oslo, has made it a practice to question prevailing penological theories, even when he helped shape those theories himself. He has followed his practice in this intriguing book. A decade ago, Professor Christie was one of the leading critics of Scandinavia’s version of the indeterminate sentence. Although indeterminacy was never taken there to the lengths that it was in our country, the Scandinavian nations did have indeterminate confinements for special classes of offenders deemed particularly in need of treatment or restraint: youthful criminals, alcoholics and addicts, and persistent offenders. Christie challenged the very basis of indeterminacy, namely, the claim that one properly can predict whether and for how long an offender

Record-enhanced sentencing in England and Wales Reflections on the Halliday Report’s proposed treatment of prior convictions

INTRODUCTION A new framework for criminal sentencing is under consideration for England and Wales. In a policy paper published in February 2001, the Home Office (2001a) announced it was considering basic changes in sentencing policy which would place substantially more emphasis on the offender’s previous criminal record than has been permissible under the desert-oriented approach embodied in the Criminal Justice Act 1991.1 There followed, in the summer of the same year, a ‘Sentencing Framework Review’ by a senior civil servant, John Halliday (Home Office, 2001b, hereafter referred to as the ‘Halliday Report’), which offers various options for change, but ones in which this increased emphasis on the criminal record is an assumed central element. The present essay examines the desirability of giving augmented weight to the criminal record. Rather than addressing the numerous specifics of the Halliday Report, I shall concentrate on this general question: how could a substantially larger recidivist premium be rationalized? The Report offers two main kinds of reasons for this step: that it would better reflect what repeat offenders deserve; and that it would provide wider scope for efforts to reform criminals. Each of these claims, to be given adequate scrutiny, will require us to consider questions of sentencing rationale, and it is such questions that I shall try to address here.2