“GIVING CRIMINALS THEIR JUST DESERTS”

Andrew von Hirsch (1976)

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The limits on state power over the individual have yet to be charted in the field of criminal sentencing.  The state now has virtually untrammelled authority to sentence a convicted criminal for any purpose and with any degree of severity.  It is incumbent upon civil libertarians to suggest, in the interest of fairness to those being sentenced, what the constraints on the state’s sentencing power should be.

                Attitudes about the criminal sentence have changed.  Until recently the ideal of treatment dominated:  The sentence was supposed to rehabilitate, and sentencing judges and parole boards were supposed to have wide discretion so they could tailor the sentence to the offender’s needs.  This notion still had sufficient vitality to prompt David J. Rothman to warn of its dangers in his thoughtful article, ‘De-carcerating Prisoners and Patients’, in the Fall 1973 issue of Civil Liberties Review.  Is it rational or fair, he asked, to sentence for treatment without good reason to expect that the therapy will work?  Might not the rehabilitative ideology give a misleading aura of beneficence to the harsh realities of punishing people – and thus legitimize more intervention in offenders’ lives with fewer constraints on official behaviour?  Since that article was published, there has been a marked decline of faith in rehabilitation.

                Although penal reformers have urged the treatment of offenders for over a century, it was not until the 1940s and 1950s that experimental programs were widely tried and evaluated.  The results were disappointing: Offenders placed in correctional treatment programs usually returned to crime about as often as those who did not participate.  Thus, for example, a survey by Robert Martinson and his collaborators of most of the major experimental programs between 1945 and 1967 concludes that ‘with few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism’.

                Since Spring 1974, when Martinson published the conclusions of his survey, the thesis that treatment seldom works has become familiar in professional circles, has been mentioned in newspaper articles, and has been noted in several presidential speeches.  Now it is the advocates of treatment who are on the defensive – who insist, almost plaintively, that the failure of many treatment programs on the past does not necessarily mean that all treatments are doomed to fail.  As doubts about the effectiveness of treatment grow, traditional faith in the rehabilitative sentence especially designed to meet the offender’s need for correctional therapy – is declining, and may already be moribund.

                What has persisted, however, is the idea that the sentence should primarily be a crime control technique.  This assumption underlay the rehabilitative sentence: the offender would be less likely to offend again if consigned to the proper treatment.  Now, when rehabilitation seemingly has failed, interest has shifted to other sentencing approaches that supposedly will do the crime control job more effectively.

                A renewed faith in incapacitation is symptomatic of this continuing search for the sentence which best prevents crime.  If offenders cannot be cured of their criminal tendencies, it is argued, they can at least be isolated – placed behind bars where they cannot prey on those outside.  Simple restraint replaces therapy, and restraint works: prisons may have few other merits, but they surely can protect the community against offence-prone persons – at least during the period of confinement.  As former Attorney General William B. Saxbe put it in a 1974 speech to a convention of police chiefs: ‘Too many dangerous convicted offenders are placed back in society… and that simply must stop.’

                Those less conservative than Saxbe have also been attracted to this approach.  The National Council on Crime and Delinquency, a vocal critic of American prisons, issued a policy statement that ‘prisons are destructive to prisoners and to those charged with holding them’, and that the only offenders who should be sentenced to prisons are those ‘who, if not confined, would be a serious danger to the public’.  The prison sanction, in other words, should be a means of retraining those who would harm others if released.  The recent National Advisory Commission on crime likewise urged that the prison sentence be used chiefly to isolate the dangerous recidivist.  The theory has been embraced even by those who see themselves as radical critics of today’s criminal justice system.

[…]

                Harvard’s James Q. Wilson suggests a more sophisticated approach to incapacitating criminals in his thoughtful and widely read book Thinking About Crime (whose influence, incidentally, is manifest in President Ford’s and Senator Edward Kennedy’s proposals for mandatory minimum sentences).  Wilson starts with the hypothesis that most serious crimes are committed by a relatively small number of repeaters who, because of the large number of crimes they perpetrate, sooner or later are caught and convicted.  Current sentencing policy imposes long prison terms on a few of these individuals, but allows most of them to be released on probation and thus return to crime if they so choose.  (In Los Angeles County, Wilson notes, the proportion of convicted robbers with major prior records who were sent to prison in 1970 was only 27 per cent.)

                If prison sentences - even of modest length – were invariably imposed in such cases, the incapacitative payoff would be substantial, Wilson suggests.  One would be taking out of circulation most of those responsible for serious crimes, at least for a portion of their criminal careers.  (There would be no need to predict which individual convicts are dangerous; instead, there would simply be a rule that conviction for certain crimes results in a stated period of imprisonment.)  The crime control benefits from such a strategy, he claims would be very large.  ‘Were we to devour [our] resources to a strategy [that is] well within our abilities – namely, to incapacitating a larger fraction of the convicted serious robbers,’ he says, ‘then not only is a 20 per cent reduction [in robbery] possible, but even larger ones are conceivable.’

                Wilson’s proposals certainly sound appealing: moderate sentences, less disparity (because judges would have less discretion), and huge payoffs in community protection – with 20 per cent fewer robberies.  But Wilson does not ask the uncomfortable question: What if the promised crime-control benefits do not materialize?  The history of sentencing reform has been  characterized by high hopes for reducing crime followed by disappointment.  In the 1820s, long sentences to penitentiaries offering inmates ‘moral therapy’ were supposed to cut the crime rate.  They did not.  In the 1900s, probation for treatable offenders and lengthy sentences for dangerous ones were supposed to do the job.  They did not.  In the 1960s, fewer prison sentences and more sentences to treatment in the community were supposed to succeed.  They did not.  Now Wilson claims that imprisoning a larger proportion of those convicted will do the crime control job where previous strategies failed.  But can one really be so sure?

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                Where Wilson goes wrong, I think, is in his underlying assumption: his pre-occupation with crime control to the near exclusion of considerations of justice.  It has commonly been supposed – and Wilson continues in this tradition – that justice has largely been satisfied once an offender has been tried and convicted with due process.  Thereafter, the focus has been almost exclusively on crime prevention – on which sentencing strategies (rehabilitation or incapacitation?  long sentences or short?) serve public safety best.  Seldom is the word justice found in the sentencing literature.

                The emphasis, I am convinced, should be precisely on the reverse: primacy should be given to considerations of justice in sentencing.  A system of criminal justice can be tolerable in a free society only if we are determined to make it what its name implies: a system of justice, not a social engineering project.  In punishing the convicted, the consequences to the individual are too harsh to permit us to act as if we were merely totting up costs and benefits, seeking the maximum efficiency in preventing crime.  Concededly, no sentencing system operating in a society as fraught with inequalities as ours can come close to being truly just.  But after conviction as before, justice should not be merely a euphemism for law enforcement; it should be an ideal which we should at least try to approximate.

                In the [early 1970s] I was involved in an effort to think through a sentencing scheme grounded mainly on ideas about justice.  It was undertaken by the Committee for the Study of Incarceration, an interdisciplinary group which included law professors, sociologists, a psychoanalyst, a criminologist, and (atypically for an inquiry about sentencing) a historian and a philosopher.  Instead of continuing the debate about what ‘works’, we decided at the outset to focus on the question: What is the just sentence?

                Suppose one begins with  a general definition of justice – (Aristotle’s) – that like cases should be treated alike and unlike cases should be treated proportionate to their differences.  One must then ask what kind of likeness is relevant for purposes of justice.  (Is it, for example, the equally deserving or the equally needy who should be treated alike?)  that is a hard question when there are no clues: there is nothing about wealth, for example, that suggests on its face whether it should be distributed according to merit or need.  In the case of punishments, rewards and grades, however, the answer should be more obvious.  Justice requires that they be distributed according to their recipients’ deserts, because they purport to be deserved.

                Academic grades illustrate this point.  Suppose a student writes a poor exam paper.  Suppose he needs an A to get into law school.  Why not give him the grade he needs?  The answer is, of course, that an A symbolizes a superior performance; that the student’s performance, in fact, was poor; and hence that he simply does not deserve the A, whatever his needs.  Desert is the only fair criterion, because that is precisely what a grade connotes.  The same is true of punishment.  It treats the person as though he deserves the pain inflicted – and does so because of its symbolism, its implicit moral condemnation of the offender.  Punishment is not merely disagreeable (so are taxes and conscription); it implies that the person acted wrongfully and is blameworthy for having done so.  Where standards of what constitutes criminal behaviour are concerned, this point is a familiar one.  It was made two decades ago by the late Henry M. Hart of Harvard Law School in his defence of the criminal law’s requirements of culpable intent.  Since punishment characteristically ascribes blame, he argued, violations should not be punished unless the offender was at fault (i.e., acted intentionally, or negligently).  Accidental violations should not be punished because they are not blameworthy.

                What is usually overlooked, however, is that the same argument holds after conviction, when sentencing is imposed.  By then, it has been decided that the offender deserves punishment, but the question of how much he deserves remains.  The severity of the punishment connotes the degree of blame: the sterner the penalty, the greater the implicit reproof.  Sending someone away to prison for years implies that he is more to be condemned than does jailing him for a few months or putting him on probation.  In deciding severity, therefore, the crime must be sufficiently serious to merit the blame.

                This means that sentences should, as a matter of justice, be decided according to a principle of commensurate deserts.  The severity of punishment should comport with the seriousness of the crime.  Stringent punishments should be limited to crimes that are serious; as the gravity of the crime diminishes, so should the severity of the punishment.  When this principle is not observed, the degree of blame becomes inappropriate.  If an offender convicted of a lesser crime is punished severely, the moral obloquy which so drastic a penalty carries will attach to him – and unjustly so, given the not-so-very-wrongful character of his offence.  Conversely, giving a mild punishment to someone convicted of serious crime understates the blame – and thus depreciates the importance of the values at stake.  […]

                Once it is accepted as a requirement of justice, the commensurate-deserts principle should determine the sentencing structure.  The seriousness of the offender’s crime – not his need for treatment, his dangerousness, or the deterrence of others – ought to be decisive.  Penalties must be scaled in accordance with the gravity of the offence, and departures from the deserved sentence should be impermissible – even if they had some crime-control usefulness.

                A sentencing system based on this conception of justice would have the following principle features.

There is potential for disagreement, of course, about which crimes are serious.  Yet assessments of seriousness – of how harmful the conduct is, and how culpable the offender – at least are moral judgements akin to those we make in everyday life.  It should be easier (or certainly no harder) to make such judgements than to surmise on slight evidence how a given sentencing policy will affect crime rates.  Moreover, the extent of disagreement on questions of seriousness should not be exaggerated.  Beginning […] with the work of the criminologists Thorsten Sellin and Marvin Wolfgang at the University of Pennsylvania, several studies have measured popular perceptions of the gravity of crimes and found a surprising degree of consensus.  When asked to rank common acts of theft, fraud and violence on a scale according to their degree of heinousness, people from widely different walks of life tend to make similar ratings.

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