The principle that a sentence should be proportionate to the seriousness of the offence remains at the centre of penal practice and scholarly debate. This volume explores highly topical aspects of proportionality theory that require examination and further analysis. von Hirsch and Ashworth explore the relevance of the principle of proportionality to the sentencing of young offenders, the possible reasons for departing from the principle when sentencing dangerous offenders, and the application of the principle to socially deprived offenders. They (...) examine the claim that the principle tends to be associated with greater severity in sentencing, and explore the relevance of penance and of restorative justice to proportionality theory. Their examination of arguments and counter-arguments culminates in a re-statement of the main criteria for proportionate sentencing.The authors are well known for their previous writings on proportionality theory, and this volume broadens the theory to deal with important contemporary issues in crime and punishment. (shrink)

A number of jurisdictions, including England and Wales after their adoption of the 1991 Criminal Justice Act, require that sentences be `proportionate' to the severity of the crime. This book, written by the leading architect of `just deserts' sentencing theory, discusses how sentences may be scaled proportionately to the gravity of the crime. Topics dealt with include how the idea of a penal censure justifies proportionate sentences; how a penalty scale should be `anchored' to reduce overall punishment levels; how non-custodial (...) penalties should be graded and used; and how political pressures impinge on sentencing policies. (shrink)

Introduction: the emergence of the proportionate sentence -- Sentence proportionality sketched briefly -- Why should the criminal sanction exist? -- Why punish proportionately? -- Ordinal and cardinal proportionality -- Seriousness, severity and the living-standard -- The role of previous convictions -- Proportionate non-custodial sanctions -- A "modified" desert model? -- The politics of the desert model -- Proportionate sentences for juveniles -- Appendix: the desert model's evolution : a brief chronology.

The decline of the rehabilitative ethos in sentencing theory in the post_1960's is a story that has been told often, and need not be rehearsed here. Penal treatment 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 treatment. As penal rehabilitation diminished in influence, the key question for penologists and reformers (...) became: what conception of sentencing should follow it? My article, as well as Michael Tonry'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 1970's and 1980's in this country and western Europe, and continues to have considerable influence today : namely, the proportionalist or 'desert' model for sentencing. I shall address briefly what this theory's main tenets are and how it differs from traditional retributivism; what has made it attractive to liberal criminologists and penal reformers during the last three decades; and whether and to what degree it has continued value and usefulness for the future. (shrink)

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

. Selective incapacitation reexamined: The national academy of sciences' report on criminal careers and “career criminals”. Criminal Justice Ethics: Vol. 7, No. 1, pp. 19-35.

This paper explores the Offence Principle. It discusses whether two constraints, additional to the criteria stated in conventional analysis, ought to be met before the Offense Principle can be satisfied: (i) that offensive conduct must be a wrong, and (ii) that the conduct must also lead to harm. The nature of the Harm Principle, and its relationship to the Offense Principle, are also considered. The paper suggests that, even if all cases in which offense should be criminalized also involve harm, (...) nonetheless there may be good reasons to retain a separate Offense Principle. (shrink)

Many of the most serious crimes that fall within the justificatory scope of the harm principle do so constitutively. They do so in the sense that the harm that the crime is designed to prevent is a...

This article opens with the consequentialist–deontologist debate, with the former concerned about the relevance of punitive measures against their crime reducing potentials, while the latter highlights punishment as censure of wrongful acts and the proportion of the punishment to the degree of crime. The article briefly discusses the empirical research on the impact of penal sanctions and focuses on three main kinds of empirical research into possible general deterrent effects—namely, association studies, quasi-experimental studies, and contextual and perceptual studies. It addresses (...) the methodological issues involved in deterrence research and summarizes the results precisely. This article also discusses reductivism in the view of the possibility that penal sanctions could influence the offender's will. The results suggest that crime preventive aims can justify sentencing policies only to a limited degree, at least for the foreseeable future. (shrink)

This book celebrates Andreas (Andrew) von Hirsch's pioneering contributions to liberal criminal theory. He is particularly noted for reinvigorating desert-based theories of punishment, for his development of principled normative constraints on the enactment of criminal laws, and for helping to bridge the gap between Anglo-American and German criminal law scholarship. Underpinning his work is a deep commitment to a liberal vision of the state. This collection brings together a distinguished group of international authors, who pay tribute to von (...) Hirsch by engaging with topics on which he himself has focused. The essays range across sentencing theory, questions of criminalisation, and the relation between criminal law and the authority of the state. Together, they articulate and defend the ideal of a liberal criminal justice system, and present a fitting accolade to Andreas von Hirsch's scholarly life. (shrink)

This article opens with the consequentialist–deontologist debate, with the former concerned about the relevance of punitive measures against their crime reducing potentials, while the latter highlights punishment as censure of wrongful acts and the proportion of the punishment to the degree of crime. The article briefly discusses the empirical research on the impact of penal sanctions and focuses on three main kinds of empirical research into possible general deterrent effects—namely, association studies, quasi-experimental studies, and contextual and perceptual studies. It addresses (...) the methodological issues involved in deterrence research and summarizes the results precisely. This article also discusses reductivism in the view of the possibility that penal sanctions could influence the offender's will. The results suggest that crime preventive aims can justify sentencing policies only to a limited degree, at least for the foreseeable future. (shrink)

Contemporary theories of criminalisation address, with varying emphasis, themes concerning the harmfulness and the wrongfulness of the conduct. In his article for the present issue, Antony Duff relies chiefly on notions of wrongfulness as the basis for his proposed criminalisation doctrines; whereas in their 2011 volume on criminalisation, Andrew Simester and Andreas von Hirsch invoke both wrongfulness and harmfulness as prerequisites for prohibiting conduct. The present article assesses the comparative merits of these approaches, and argues in favour of (...) the latter, two-element perspective. In this article, the author puts forward a number of reasons suggesting why the two-element approach is preferable. These reasons include, firstly, an inductive argument—that the kinds of wrongful conduct for which criminalisation seems a plausible response are those that include an element of harm or risk of harm. Secondly, a defining role for the state is one of resource-protection: of safeguarding the means and resources through which citizens can live good lives. Thus the concept of citizens’ living resources—and the related conception of harm—should be made a constitutive and explicit element of criminalisation theory, rather than subsuming resource-protection under a general rubric of wrongfulness. Thirdly, a two-element approach provides reciprocal limiting principles concerning the scope of criminalisation. One can, for example, employ wrongfulness requirements to limit the criminalisation of conduct that has remote harmful consequences; and, conversely, use a harmfulness requirement as means for restricting the criminalisation of wrongful acts. (shrink)

The Oxford Monographs On Criminal Law And Justice series aims to cover all aspects of criminal law and procedure including criminal evidence. the scope of the series is wide, encompassing both practical and theoretical works. Series Editor: Professor Andrew Ashworth, Vinerian Professor of English Law, All Souls College, Oxford. This volume is a thematic collection of essays on sentencing theory by leading writers. The essays fall into three groups. Part I considers the underlying justifications for the imposition of punishment (...) by the State, and examines the relationship between victims, offenders and the State. Part II addresses a number of areas of sentencing policy that have given rise to particular difficulty, such as the sentencing of drug offenders, the rationale for discounting sentences for multiple offenders, the existence of special sentencing for young offenders, and cases where the injury done to the victim is of a different magnitude from what might have been expected. Part III raises various questions about the unequal impact on offenders of different sentencing measures, and examines the extent to which sentences should be adjusted to take account of these different impacts and of broader social inequalities. This volume is dedicated to Professor Andrew von Hirsch, whose continuing work on sentencing theory provided the stimulus for the collection. (shrink)

Andrew Simester and Andreas von Hirsch’s Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Simester and von Hirsch 2011) is an important contribution to the philosophical debate over the nature and ethical limits of criminalisation. As they note in their reply in this symposium, one of the novel aspects of their account is that they do not advance one “unified, grand theory”. Rather, they analyse each ground of criminal prohibition—wrongfulness, harm-based, offense, and paternalistic prohibitions aimed at (...) preventing self-harm—so as to develop guiding principles for their use (or, in the case of paternalism, the absence of an independent principle that would underwrite its use).The result is a rich set of arguments that advance a number of debates across the field of criminalisation.However, that is not all: the participants share the view that, as Tatjana Hörnle puts it, “any theory of criminalization presupposes assumptions about the functions of the criminal law. The q. (shrink)

We discuss and respond to the contributions of Tatjana Hörnle, John Kleinig, and John Stanton-Ife, and clarify some aspects of the arguments made in Crimes, Harms, and Wrongs.

Andrew von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals New Brunswick, N.J.: Rutgers University Press, 1985, 220 pp.

Andrew von Hirsch and Andrew Ashworth recently argued that there is generally a reason to punish a socially deprived offender less than his non-deprived counterpart (ie someone who is not socially deprived but is otherwise similar to the deprived offender in that he committed the same crime, caused the same harm, with the same degree of foresight, etc), because deprived offenders generally face stronger temptations to offend than their non-deprived counterparts. In reply, I will argue that we (...) should draw a distinction between (i) facing stronger temptations to offend when one offended and (ii) acting on stronger temptations in offending. The distinction is analogous to Antony Duff’s distinction between having a reason for an action and acting on/for that reason. After drawing the distinction, I will argue that while acting on stronger temptations in offending should be a mitigating factor, facing stronger temptations to offend per se should not be a mitigating factor. Moreover, I will argue that since it is not true that deprived offenders generally act on stronger temptations in offending, social deprivation cannot be defended as a general mitigating plea on the basis that deprived offenders generally act on stronger temptations in offending. (shrink)

Two studies document that people are more willing to express emotions that reveal vulnerabilities to partners when they perceive those partners to be more communally responsive to them. In Study 1, participants rated the communal strength they thought various partners felt toward them and their own willingness to express happiness, sadness and anxiety to each partner. Individuals who generally perceive high communal strength from their partners were also generally most willing to express emotion to partners. Independently, participants were more willing (...) to express emotion to particular partners whom they perceived felt more communal strength toward them. In Study 2, members of romantic couples independently reported their own felt communal strength toward one another, perceptions of their partners’ felt communal strength toward them, and willingness to express emotions to each other. The communal strength partners reported feeling toward the participants predicted the participants’ willingness to express emotion to those partners. This link was mediated by participants’ perceptions of the partner’s communal strength toward them which, itself, was a joint function of accurate perceptions of the communal strength partners had reported feeling toward them and projections of their own felt communal strength for their partners onto those partners. (shrink)

Two recent discussions concerning punishment of the socially deprived reach conflicting conclusions. Andrew von Hirsch and Andrew Ashworth argue that we should sympathize with the predicament of the poor and therefore mitigate their sentences. Peter Chau disputes von Hirsch and Ashworth’s conclusion, contending that having to face strong temptations is not an appropriate ground for reducing anyone’s punishment for their crimes. I argue that neither von Hirsch and Ashworth’s account nor Chau’s critique of it is (...) persuasive. I then take up the challenge of showing why social deprivation renders punishment problematic. I contend that it establishes a perverse incentive structure that is persistent and powerful, requiring the disadvantaged to exercise self-control on an ongoing basis. Repeated acts of self-control are difficult, especially for youths whose skills at it are not yet fully developed. Also, in a variety of more and less subtle ways, social deprivation reduces the incentives for self-control and may work to stunt its development. In closing, I briefly consider the options for responding to the crimes of the chronically disadvantaged. (shrink)

Mixed theories of legal punishment treat both crime reduction and retributive concerns as irreducibly important and so worthy of inclusion in a single justificatory framework. Yet crime reduction and retributive approaches employ different assumptions about the necessary characteristics of those liable to punishment. Retributive accounts of legal punishment require offenders to be more responsive to moral considerations than do crime reduction accounts. The tensions these different assumptions create are explored in the mixed theories of John Rawls, H. L. A. Hart, (...) and Andrew von Hirsch. It is argued that none of these theories successfully resolve the tensions. The prospects for resolving them are then discussed. (shrink)

Issues of interest, identity and values intertwine in environmental conflicts, creating challenges that cannot generally be overcome using rationalities grounded in generalised argumentation and abstraction. To address the growing need to engage interests and identities along with plural values in the conservation of biodiversity and ecological systems, we introduce the concept of ‘appropriateness of actions’ and ground it in a relational understanding of environmental ethics. A determination of appropriateness for actions comes from combining outputs from value elicitation with those of (...) interest and identity negotiation in ways that are salient to specific people and their relationships to specific places. Drawing on the Blue Mountain Forest Partnership in the Pacific Northwest, we propose factors of success for supporting appropriate actions: 1) understanding context and identifying key stakeholders; 2) surfacing a diversity of interests and building system-level trust; 3) building empathy for different identities grounded in specific places; 4) eliciting diverse values and seeking to understand their links to worldviews and knowledge systems and; 5) seeking out appropriate actions. (shrink)

In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence Principle with (...) some other influential accounts. After examining the role wrongfulness plays in their work, I ask what there is left for their Harm and Offence Principles to do. In the light of the understanding and foundations of the Harm and Offence Principles proposed by the authors, I suggest that the answer is little or nothing. The wrongfulness constraint the authors place on their Offence Principle comes close to swallowing it up entirely. Furthermore the part of their Offence Principle that is not thus swallowed by wrongfulness leaves the account with a commitment that is probably best dropped. As far as their Harm Principle is concerned I suggest that the authors’ account of ‘harm’ is so broad that it lacks the resources to distinguish harm-based reasons from wrongfulness- or immorality-based reasons in any principled way. Among other things, I ask in this context, first, whether one can be harmed as one’s character deteriorates and, secondly, whether one is harmed by virtue of the serious wrong one does to another. What really drives the authors’ account of legitimate criminalisation, I believe, is wrongfulness together with an important, amorphous set of potential defeating conditions. They themselves accept such a picture so far as paternalism is concerned. I conclude that their account, which I think has considerable force, would lose little of any significance were their Harm and Offence Principles simply excised. More generally I suspect that a strong role for wrongfulness in an account of legitimate criminalisation is likely to put into serious question the plausibility of an independent principled role for harm and offence. (shrink)

Developing countries face numerous barriers to conducting effective and efficient ethics reviews of international collaborative research. In addition to potentially overlooking important scientific and ethical considerations, inadequate or insufficiently trained ethics committees may insist on unwarranted changes to protocols that can impair a study's scientific or ethical validity. Moreover, poorly functioning review systems can impose substantial delays on the commencement of research, which needlessly undermine the development of new interventions for urgent medical needs. In response to these concerns, the Drugs (...) for Neglected Diseases Initiative, an independent nonprofit organization founded by a coalition of public sector and international organizations, developed a mechanism to facilitate more effective and efficient host country ethics review for a study of the use of fexinidazole for the treatment of late stage African Trypanosomiasis. The project involved the implementation of a novel ‘pre-review’ process of ethical oversight, conducted by an ad hoc committee of ethics committee representatives from African and European countries, in collaboration with internationally recognized scientific experts. This article examines the process and outcomes of this collaborative process. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:SENOR HIRSCH AS SACRIFICIAL VICTIM AND THE MODERNISM OF CONRAD'S NOSTROMO Andrew Bartlett University ofBritish Columbia One of René Girard's more pithy definitions of mimetic desire reads: "The model designates the desirable while at the same time desiring it. Desire is always imitation ofanother desire, desire for the same object, and, therefore, an inexhaustible source of conflicts and rivalries" {Double Business Bound 39). The notation that desire (...) is an "inexhaustible" source of conflicts hints at the political pessimism expressed more openly elsewhere in Girard's writing. In 1961, he said it like this: "Whatever political or social system is somehow imposed on them, men will never achieve the peace and happiness of which the revolutionaries dream, nor the bleating harmony which so scares the reactionaries. They will always get on togetherjust enough to enable them never to agree" (Deceit 110-11). This is a Girard who, suspicious of political rhetoric, speaks with audacious cynicism even of democracy: "Who is there left to imitate after the tyrant? Henceforth men shall copy each other... Democracy is one vast middle-class court where the courtiers are everywhere and the king is nowhere" (Deceit 119). This Girard has remained consistent in his thematization of the impurity of all political compromises: "men are only capable ofreconciling their differences at the expense of a third party. The best men can hope for in their quest for nonviolence is the unanimity-minus-one ofthe surrogate victim" (Violence 259). Girard's political skepticism seems to be a result of his conviction that arbitrary victims ofviolent unanimity are the "ingredient" in political thought that allows each community to be flattered by the illusion of its political innocence, the illusion of the justifiability of its violence. 48Andrew Bartlett Modem political thought cannot dispense with morals, but it cannot become purely moral without ceasing to be political. Another ingredient must therefore be mixed with morals. If we really tried to identify what this is we would inevitably end up with formulas like Caiaphas': "It is better that this man or those die so that the community may survive" (Scapegoat 116). Political institutions, in establishing power relations between dominant and subordinate people, always exercise force, violence (Beetham 47-48). A perfectly moral politics seems as impossible as a perfectly nonviolent politics. Girard's refusal to plant his feet in the wet cement of any single political party's rhetoric is the outcome, in part, of his preference for a religious perspective on human affairs. The religious is his fundamental category ofanalysis; and religion in Girard's view is not an unenlightened form of belief to be superseded by political wisdom, but rather the fundamental mode of human social organization, the political only a secular displacement of it. I hasten to add that Girard's pessimism about political arrangements arises not from any stoical indifference to their victims, but rather from his respect for victims—a respect that is finally religious in character. A related sub-clause of Girard's political pessimism is the incompatibility ofmimetic theory and "identity politics," broadly defined so as to include nationalist or ethnic politics based on historical grievances and desires for vengeance. I have in mind here Girard's idea that the distinct identity of the surrogate victim is not strictly relevant to the effects of collective violence. Violence belongs to all men, and thus to none in particular. It is futile to look for the secret ofthe redemptive process in distinctions between the surrogate victim and other members of the community. The crucial fact is that the choice ofthe victim is arbitrary (Violence 257). The stabilizing effects of political scapegoating thus depend on the degree of unanimity in the community's violence, not on the identity ofthe victim. The identity of the sacrificial victim is not essential in scapegoating; the essential in scapegoating is the unanimity ofthe collective violence itself (cf. Violence 84, 150). Perhaps because of this priority of violent unanimity over victim identity, Girard has measured his distance from specific political causes (Scapegoat 19-20). We must confront what I would call the formal equivalence of scapegoats. The arbitrary victim of a sacrificial political process may be anyone: scandalously rich or scandalously... (shrink)