The “Desert” Model for Sentencing: Its Influence, Prospects, and Alternatives

Andrew von Hirsch The “Desert” Model for Sentencing: Its Influence, Prospects, and Alternatives INTRODUCTION THE DECLINE OF THE REHABILITATIVE ETHOS IN SENTENCING THEORY in th e post-1960s is a story that has been told often (see, for example, Allen, 1981) and need not be rehearsed here.' Penal treatm ent programs, once tested for their effectiveness, showed scant success—or at most, succeeded only in limited categories of cases. Doubts grew also about the fairness of making the severity of a person’s sentence depend upon his responsiveness to treatm ent. As penal rehabilitation dim inished in influence, the key question for penologists and reformers became: w hat conception of sentencing should follow it? My article, as well as Michael Tomy’s and John Donahue’s in the present volume, is devoted to this question, of the choice of sentencing rationale. I will focus, particularly, on a sentencing theory that became influential in the late 1970s and 1980s in this countiy (see Tomy in this volume) and w estern Europe (Bottoms, 1995; Jareborg, 1995; Hornle, 1999) and continues to have considerable influence today (von Hirsch and Ashworth, 2005, chap. 1): namely, the proportionalist or “desert” model for sentencing. PROPORTIONATE SENTENCING: THE “DESERT” MODEL The idea of proportionate, deserved sentences has had a curious history of long being ignored, and then becoming very influential. Judges, as a social research Vol 74 : No 2 : Summer 2007 413 m atter of practice, have traditionally based their sentences in consid­ erable part on the seriousness o f crimes. Philosophers for centuries debated retribution as the basis for punishm ent. In m odem sentencing theory, however, retribution was scarcely taken seriously: crim inolo­ gists either ignored the idea or dismissed it as obsolete, reactionary, or obscure.1 The interest in desert theory originates from the mid-1970s w ith publication of several works on reform of sentencing policy, including my own DoingJustice (von Hirsch, 1976), the report of the Committee for the Study of Incarceration. Once broached, the idea quickly became influential in penological thinking in the United States and Europe,2 and a num ber of jurisdictions explicitly drew on it in their sentencing reform efforts.3 This literature addressed two of the common objections to tradi­ tional versions of retributivism . One objection was that the notion of deserved punishm ent was essentially incomprehensible, that it rested on “m etaphysical” notions such as the requital of evil for evil. Desert theorists provided a sim pler explanation, however. Punishm ent, they pointed out, is a blaming institution. The difference between a criminal and a civil sanction lies, generally, in the fact that the form er involves censure of the actor for his crim inal conduct (von Hirsch, 1993, chap. 2; von Hirsch and Ashworth, 2005, chap. 2). Fairness thus requires that penalties be allocated consistently w ith their blam ing implications. The severity of the punishm ent (and thereby its degree of implied censure) should com port w ith the blam ew orthiness (that is, the seriousness) of the defendant’s crim inal conduct. D isproportionate or disparate punishm ents are unjust, not because they fail to requite suffering w ith suffering, but because they impose a degree of penal censure on offend­ ers that is not w arranted by the comparative reprehensibleness of their criminal conduct. The other objection was to the harshness of retributive punish­ m ent, to its apparent exaction of an eye for an eye. Desert theorists’ response has been that desert does not require visitation of suffering that is equal that done by the offender to his victim. W hat is required, 414 social research instead, is punishm ents that are proportionate to the seriousness of the criminal conduct. Proportionate punishm ents may be imposed w ithout increasing (indeed, while substantially decreasing) prevailing severity levels,4 so long as penalties are ranked in the order of a crim e’s seri­ ousness, and equally reprehensible crim inal acts are penalised w ith roughly comparable severity. It should be noted th at the two conceptions are linked. Censure, on this perspective, should not be regarded as m ere denunciation of crim e and criminals. It should be understood, rather, as a...