Author: Andreas von Hirsch
Publisher: Oxford, UK: Portland, OR: Hart Publishing, 2017. 192P.
Reviewer: Susan Dimock | October 2017

No one is better positioned than Andreas von Hirsch to provide, what he modestly calls an overview but would be better described as, a definitive development of the desert model of criminal sentencing, from foundations to applications. The core premises of the desert model of sentencing are that criminal offenders should be punished only as severely as deserved, and that the sanctions offenders deserve are those that are proportionate in severity to the seriousness of their crimes. Von Hirsch argues that the primary basis for scaling punishments “should be the principle of proportionality—requiring the severity of the penalty to be fairly commensurate with the gravity of the criminal conduct of which the defendant has been convicted” (45). After quickly reviewing the history of the principle of proportionality (POP) and some of the many justifications that have been offered for it, consequentialist and deontological, von Hirsch offers his own defence, grounded in deserved censure. “The requirement of proportionate punishment should . . . be derived directly from the censuring implications of the criminal sanction. Once one has created an institution with the condemnatory implications that punishment has, then it is a requirement of justice, not merely of efficient crime prevention, to punish offenders according to the degree of blameworthiness of their conduct” (49). Disproportionate punishments are unjust because they “would purport to condemn the actor for his conduct and yet visit more disapprobation on him than the gravity of his conduct would warrant” (49).

Desert theory is contrasted with others that would decide sentence severity on predictive, preventive, or rehabilitative factors. Rejecting such factors as properly determinative of just sentencing has important practical implications: indeterminate sentencing (that is, confining offenders until they are deemed to be no longer at risk of reoffending) is ruled out completely, for example, while imposing significantly increased punishments upon offenders because they have serious prior convictions is shown to be deeply problematic (since punishments are supposed to be proportionate to just the seriousness of the crime being sanctioned). To the extent that these or other practices permit the imposition of sentences in excess of what is deserved for the offence being punished, they are impermissible on the desert model.

Given desert’s clear backward-oriented focus, it is unsurprising that its proponents eschew such forward-looking concerns as crime prevention or prisoner rehabilitation in fixing the severity of punishments. But von Hirsch makes clear that the desert theory differs from other backward-looking retributive theories too, especially those committed to lex talionis as the return of equivalent harm-for-harm. Proportionate punishing does not aim to visit upon offenders harms equal to those they inflicted on their victims. Rather, what desert theory demands is that “the penal censure expressed through the sanction should fairly reflect the degree of reprehensibility of the defendant’s criminal conduct—that is, its degree of harmfulness and culpability” (8).

Reference to “the penal censure expressed through” criminal sentences is of fundamental importance to desert theory. It is only because criminal sanctions convey censure—that unique form of moral disapproval called disapprobation or reprobation—that their use should be limited to only sanctions that are deserved. Punishment is a blaming institution and thus its penalties should fit its censuring implications. Most basically, conduct of comparable blameworthiness should receive comparable penalties. Desert thus supports a principle of parity: all else being equal, offenders who commit equally serious crimes should receive comparably severe sentences.

Desert theorists accept POP as determinative in fixing just penalties. Desert functions within such theories not merely as an outer limit on the range of acceptable sentences for various crimes (forbidding only grossly disproportionate penalties). Rather, von Hirsch thinks that desert sets the appropriate penalty for each crime, because every crime should be censured proportionately with its degree of reprehensibility. Within a censuring system, every punishment conveys a certain level of censure and disapprobation. If the system conforms to desert theory, it will be the case that if crime X is punished more severely than crime Y then crime X is more reprehensible and worthy of greater disapprobation than is crime Y. Varying degrees of censure will be needed for varying degrees of wrongdoing. One crime/criminal should be punished more severely than another only if the one deserves greater censure than the other. If instead desert set only broad outer limits, significant violations of parity might be justifiable.

To say that equally serious crimes should receive equally onerous penalties is to insist on ordinal proportionality. We should order crimes in terms of seriousness and penalties in terms of severity in order to ensure that ordinal or comparative proportionality is maintained, thereby censuring more serious crimes more severely than less serious ones.

Ordinal proportionality imposes two requirements on sentencers. First, sentences should satisfy a principle of parity: offenders who commit crimes of equal seriousness should receive punishments of equal onerousness. Parity is compromised to the extent that penal systems permit increased penalties for persons with previous criminal records. It may, but need not, also be compromised by imposing lesser penalties on juvenile offenders. Von Hirsch supports penalty reductions for first-time or occasional offenders rather than increases for repeat offenders, as well as a special system of penalties for young offenders. His defence of these practices within a system of sentencing based on desert is original and insightful. Second, penalties should be rank ordered. “Punishing crime Y more severely than crime X expresses greater disapprobation for crime Y, which is warranted only if it is significantly more serious. Punishments thus should be ordered on the scale of penalties so that their relative severity reflects the seriousness-ranking of the crimes involved” (58). Together these demands of ordinal proportionality impose real constraints on sentencers. Whether they will result in fairer sentences being imposed will depend, however, on the cardinal magnitude of the penalty scale as well.

The overall justice of sentencing systems is also a function of the magnitude of the penalties they impose and not merely of their comparative allocations. Desert theory is less helpful in deciding questions of cardinal proportionality, i.e., the anchor points of the penalty scale, as von Hirsch himself admits. What the least onerous sanction should be and what the most severe sanction should be are not determined by desert theory per se, though it seems to me that desert theory might provide more guidance here than von Hirsch recognizes: if there are some forms of treatment that moral agents cannot deserve even in response to heinous wrongdoing, like capital punishment or torture, they will be proscribed.

Von Hirsch’s desert theory assumes that sanctions convey censure; imposing punishments communicates our disapprobation of offenders’ criminal conduct. Penal sentencers address those convicted of crimes as culpable wrongdoers, thereby ensuring that the system treats those appearing before it as responsible moral agents, an important component in its supposedly ‘liberal’ credentials. Censuring crimes as wrongs, in addition to responding to the moral agency of wrongdoers, allows sentencers to acknowledge any rights and interests that have been wrongfully interfered with by the criminal. These advantages of responding to crimes with moral disapprobation are illuminated by contrasting such systems with one imposing only ‘neutral’ sanctions not embodying blame.

Though censure is central to our punishment practices, punishment conveys disapprobation “in a special way—through the visitation of deprivation (‘hard treatment’) on the offender. The hard treatment is the vehicle through which the censure is expressed” (19). Of course, even theorists who accept that we are entitled to censure wrongdoers for their wrongdoings might nonetheless deny that criminal wrongdoers deserve to suffer censure expressed through hard treatment. Indeed, this is precisely where desert’s harshest critics, like Victor Tadros, will get off the trolley.

Such concerns will be magnified, moreover, given that von Hirsch’s rationale for expressing penal censure through hard treatment is instrumental, namely, to keep “predatory behaviour within tolerable limits” (19). A censuring system of criminal punishment that expresses condemnation through hard treatment provides moral agents with a prudential reason to obey the law even if they are insufficiently motivated by the normative reasons that make the conduct wrong. This approach treats those addressed by penal censure as moral agents capable of responding to the law’s normative demands while acknowledging that they are fallible and sometimes tempted toward criminal behaviour.

Aiming to assign only penalties that are proportionate to offenders’ varying degrees of desert, von Hirsch claims, is better suited to the institutional setting within which modern punishments are imposed than alternative theories of sentencing on offer. Among its suggested advantages are the relatively concrete practical guidance it offers sentencing judges, the perception of fairness it would engender, and its rejection of harm-for-harm, which would allow its whole schedule of penalties to be considerably less harsh than some of those currently imposed (e.g., in the USA), thereby reducing excessive penalties in fact.

It claims these advantages, moreover, without denying the plausible idea that criminal sentencing must have crime prevention as its end (or as an end, at least). Von Hirsch doesn’t deny that crime prevention is a central and legitimate goal of governments. He accomplishes the reconciliation of desert with prevention using the time-honoured strategy of making desert and prevention relevant at different levels. “The desert model . . . relies upon crime-prevention along with censure of criminal behaviour as the twin (and intertwined) justifications for the existence of a system of punishment” (9, emphasis added). But sentencing theories like desert concern how much offenders deserve by way of sanction within systems of punishment, and so apply at a different level than do considerations of general prevention.

If the severity of penalties should be proportionate to the seriousness of their corresponding crimes, both severity and seriousness must be understood in sufficient detail to guide comparative judgments of each. Crime seriousness is a function of two factors: the (potential) consequences of the conduct (e.g., the harm done or risked, the rights violated, the interests set back) and the offender’s culpability for that conduct. Both are scalar and so crime seriousness varies along two dimensions. Von Hirsch doesn’t offer an account of how degrees of comparative culpability should be ascertained, though he gestures toward the substantive criminal law’s mens rea doctrines (which treat intentional or purposeful unlawful conduct as more culpable than the same done merely knowingly, recklessly, or carelessly), and substantive defences, for guidance. In describing the other dimension of crime seriousness—comparative harmfulness—von Hirsch borrows Amartya Sen’s ‘standard of living’ account of harm. Conduct is harmful (or dangerous) to the extent that it deprives its victim of the resources, means, and capabilities typically needed to achieve an acceptable quality of life. The more such interests are set back, or more important the interests invaded are to typical standard of living, the more serious the crime is, all else equal. The severity of penalties can be likewise assessed against the living-standard account of harm, according to the degree to which their imposition deprives those being sanctioned of their capabilities to achieve acceptable living standards.

The conception of harm we need to implement desert theory must determine where on a continuum we should place specific criminal acts, where the anchor points of the scale are levels of harm so trivial that they do not exceed a reasonable de minimis threshold for criminal law on the one end, and the greatest harms possible on the other. Comparing the harmfulness of assault, welfare fraud, treason, kidnapping, using the mail for illegal purposes, downloading material without permission, mass murder, theft of a $45.00 sweater, etc. requires a conception of harm that can be applied inter-personally across the whole range of harms criminal law rightly deals with. Grading crimes according to their typical impact on the standard of living of those affected by them meets this need. Different crimes threaten different interests, as our short list above reveals, but we can compare and group different interests in terms of how important they typically are to individuals’ quality of life.

If we agree to grade crime seriousness based on how harmful the criminalized conduct typically is, and that conduct is more harmful the more it invades interests vital to others’ standard of living, we can seemingly escape the problem of inter-personal comparisons of utility otherwise needed to rank crimes as more or less harmful. I note, though, that while the living standard seems well suited to crimes having identifiable human victims, these constitute only a fraction of modern crimes. If it is not generalizable to the rest, then the living standard may not be the best conception for gauging harm.

Despite my reservations about its adequacy for determining crime harmfulness, the living standard test may fare better as a measure of the harmfulness or onerousness of penalties (all of which are inflicted on human beings whose standard of living is diminished, purposefully, by punishment). As a way to compare the severity of sanctions it seems promising. Gauging the harmfulness of our punishments by such a measure might have salutary effects, insofar as the degree of harm caused to those who suffer our punishments could not be so blithely discounted as it currently is if it were cashed in the same currency as is the harm done to crime victims.

The main challenge facing desert theorists is to explain why penal censure must be conveyed through punishment, hard treatment, or the imposition of significant losses upon convicted persons. Even if those who behave reprehensively deserve censure, why must censure be conveyed through hard treatment? Von Hirsch’s answer is that only censure administered through hard treatment can prevent crime. He says his is a theory fit for moral but fallible agents: it primarily appeals to the normative factors that make offenders’ conduct reprehensible and so censure-worthy. But recognizing that people are imperfectly virtuous and tempted to engage in criminal conduct, the threat of punishment provides an additional prudential reason to avoid such wrongdoing. This bifurcated view treats offenders as moral agents, insofar as offenders are censured based on the wrongfulness of their conduct and the moral reasons that make it reprehensible, even if they are offered prudential reasons to desist in the future as well, namely the interests that will be set back by suffering sanctions.

Von Hirsch’s theory remains desert-focused (rather than becoming a hybrid) despite adding prevention-related considerations in the justification for imposing sanctions that harm offenders’ standard of living. It does so by strictly subordinating prevention to desert. Prevention can occur only within the censuring system. Within that system, the preventive function of penal sanctions justifies the use of hard treatment to express our reprobation of the crime, while subordinating the preventive to the reprobative: even if increasing the amount of hard treatment imposed for offences would better deter crime, it is disallowed. Increasing the onerousness of penalties expresses an increasing level of censure, which can only be justified if an offender is deserving of greater censure.

Permitting a limited role for prevention in the justification of institutions of punishment provides von Hirsch with an explanation of why the political state, specifically, is the appropriate agent for imposing deserved penal censure (something other retributive theories struggle with). He takes it as axiomatic that states have a duty to protect their citizens from the kind of harms criminalized in legitimate criminal codes. And, within liberal polities meeting this condition, they also have a duty to carry out their protective function only in ways that treat citizens with respect and as moral agents. Desert theory explains how states can fulfil both duties simultaneously.

This is an excellent presentation of desert theory. Critics of desert (generally or penal desert specifically) will have to respond to von Hirsch’s arguments. And, given that most modern western states are committed to POP, understanding better what it requires may clear the way for much needed reforms to actual penal practices.

Susan Dimock, Professor of Philosophy and University Professor, York University

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