PENAL CENSURE ENGAGEMENTS WITHIN AND BEYOND DESERT THEORY This exploration of penal censure is inspired by the 40th anniversary of the publication of Andreas von Hirsch’s Doing Justice, which opened up a fresh set of issues in theorisation about punishment that eventually led von Hirsch to ground his proposed model of desert-based sentencing on the notion of penal censure Von Hirsch’s work thus provides an obvious starting-point for an exploration of the importance of censure for the justification of punishment, both within his theory of just deserts and from the perspectives of other theoretical approaches It also provides an opportunity for engaging with censure more broadly from philosophical, sociological–anthropological and individual– psychological perspectives The essays in this collection map the conceptual territory of censure from these different perspectives, address issues for desert theory that arise from fuller understandings of censure, and consider afresh the role of censure within the jurisprudence of punishment They show that analyses of censure from different vantage points can significantly enrich punishment theory, not least by providing a conceptual basis for perceiving common ground between and thus connecting different strands of penal theory Studies in Penal Theory and Penal Ethics: Volume Studies in Penal Theory and Penal Ethics A Series Published for the Centre for Penal Theory and Penal Ethics Institute of Criminology, University of Cambridge FOUNDING EDITOR: ANDREW VON HIRSCH GENERAL EDITORS: ANTHONY E BOTTOMS, ANTJE DU BOIS-PEDAIN Ethical and Social Perspectives on Situational Crime Prevention edited by Andrew von Hirsch, David Garland and Alison Wakefield Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? edited by Andrew von Hirsch, Julian Roberts, Anthony E Bottoms, Kent Roach and Mara Schiff Incivilities: Regulating Offensive Behaviour edited by A P Simester and Andrew von Hirsch Previous Convictions at Sentencing: Theoretical and Applied Perspectives edited by Julian V Roberts and Andrew von Hirsch Setting the Watch: Privacy and the Ethics of CCTV Surveillance Beatrice von Silva-Tarouca Larsen Criminal Law and the Authority of the State edited by Antje du Bois-Pedain, Magnus Ulväng and Petter Asp Penal Censure: Engagements Within and Beyond Desert Theory edited by Antje du Bois-Pedain and Anthony E Bottoms Penal Censure Engagements Within and Beyond Desert Theory Edited by Antje du Bois-Pedain and Anthony E Bottoms HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The editors and contributors severally 2019 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work All rights reserved No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers All UK Government legislation and other public sector information used in the work is Crown Copyright © All House of Lords and House of Commons information used in the work is Parliamentary Copyright © This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019 A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication data Names: du Bois-Pedain, Antje, editor. | Bottoms, Anthony E., 1939- editor Title: Penal censure : engagements within and beyond desert theory / edited by Antje du Bois-Pedain, Anthony E Bottoms Description: Oxford, UK ; Portland, Oregon : Hart Publishing, 2019. | Series: Studies in penal theory and penal ethics ; volume 7 | Includes bibliographical references and index Identifiers: LCCN 2018048702 (print) | LCCN 2018049201 (ebook) | ISBN 9781509919796 (Epub) | ISBN 9781509919789 (hardback) Subjects: LCSH: Punishment—Philosophy. | Sentences (Criminal procedure) | BISAC: LAW / Comparative Classification: LCC K5103 (ebook) | LCC K5103 P463 2019 (print) | DDC 345/.0773—dc23 LC record available at https://lccn.loc.gov/2018048702 ISBN: HB: 978-1-50991-978-9 ePDF: 978-1-50991-980-2 ePub: 978-1-50991-979-6 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters Table of Contents List of Contributors�������������������������������������������������������������������������������������vii Introduction������������������������������������������������������������������������������������������������ ix Antje du Bois-Pedain and Anthony E Bottoms PART I CENSURE: MAPPING THE CONCEPTUAL TERRITORY The Architecture of Censure��������������������������������������������������������������������3 John Kleinig Censure, Sanction and the Moral Psychology of Resentment and Punitiveness������������������������������������������������������������������������������������19 Jonathan Jacobs Reflective Censure: Punishment and Human Development���������������������41 Liat Levanon How Should We Argue for a Censure Theory of Punishment?�����������������67 Christopher Bennett PART II CENSURE AND JUST DESERTS REVISITED: ISSUES FOR DESERT THEORY Censure and Hard Treatment in the General Justification for Punishment: A Reconceptualisation of Desert-oriented Penal Theory�����87 Andreas von Hirsch Deserved Censure, Hard Treatment and Penal Restraint��������������������������93 Andrew Ashworth Penal Censure, Repentance and Desistance������������������������������������������� 109 Anthony E Bottoms The Evolution of Retributive Punishment: From Static Desert to Responsive Penal Censure���������������������������������������������������������������� 141 Julian V Roberts and Netanel Dagan Dealing with Potential Terrorists within a Censure-based Model of Sentencing�������������������������������������������������������������������������������������� 161 Alessandro Corda vi Table of Contents PART III CENSURE, DESERT AND THE JURISPRUDENCE OF PUNISHMENT 10 Rootless Desert and Unanchored Censure�������������������������������������������� 187 Matt Matravers 11 The Role of Victims’ Rights in Punishment Theory������������������������������� 207 Tatjana Hörnle 12 Penal Desert and the Passage of Time��������������������������������������������������� 227 Antje du Bois-Pedain 13 Censure, Dialogue and Reconciliation�������������������������������������������������� 253 Rob Canton 14 Fairness, Equality, Proportionality and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment����������������������������� 277 Michael Tonry Index��������������������������������������������������������������������������������������������������������� 299 List of Contributors Andrew Ashworth, Vinerian Professor of English Law Emeritus, University of Oxford; Emeritus Fellow of All Souls College, Oxford Christopher Bennett, Reader in Philosophy, University of Sheffield Anthony E Bottoms, Wolfson Professor of Criminology Emeritus, University of Cambridge; Life Fellow of Fitzwilliam College, Cambridge Rob Canton, Professor in Community and Criminal Justice, De Montfort University Alessandro Corda, Lecturer in Law, Queen’s University, Belfast Antje du Bois-Pedain, Reader in Criminal Law and Philosophy, University of Cambridge; Fellow of Magdalene College, Cambridge Netanel Dagan, Adjunct Lecturer, Institute of Criminology, The Hebrew University of Jerusalem Andreas von Hirsch, Emeritus Honorary Professor of Penal Theory and Penal Law, University of Cambridge and Honorary Professor of Penal Theory, Goethe University Frankfurt Tatjana Hörnle, Professor of Criminal Law, Comparative Law and Legal Philosophy, Humboldt University, Berlin Jonathan Jacobs, Professor of Philosophy, John Jay College of Criminal Justice and Director, Institute for Criminal Justice Ethics, City University of New York John Kleinig, Professor of Philosophy Emeritus, John Jay College of Criminal Justice, City University of New York Liat Levanon, Lecturer in Law, King’s College London Matt Matravers, Professor of Law and Philosophy, University of York Julian V Roberts, Professor of Criminology, University of Oxford; Supernumerary Fellow of Worchester College, Oxford Michael Tonry, Professor of Law and Public Policy, University of Minnesota viii Introduction ANTJE DU BOIS-PEDAIN AND ANTHONY E BOTTOMS I n introducing a book on penal censure, it is valuable to remind ourselves that all societies censure some acts Indeed, Colin Sumner has argued that, sociologically, ‘social censures have a profound existence: at the heart of intense emotional patterns, in the centre of politically and economically significant moral-ideological formations … they are vital forces in the constitution of societies’.1 If this is correct, social censures are clearly open both to sociological analysis (for example: ‘How did this censure arise? ‘What role does it currently play in our society?’) and to critical normative analysis and evaluation (for example: ‘Is it justified to maintain this censure?’; ‘Should we not be formally censuring [a particular activity]?’).2 The principal concern of this volume lies in the field of critical normative analysis and evaluation, applied to the special field of criminal punishment In developed societies, the criminal law is always a major vehicle (although of course not the only vehicle) through which social censure is conveyed; and normatively speaking, criminal censures need to be understood as a special kind of social censure, in respect of which analysts must be especially sensitive to the general terms of the relationship between citizens and the state Given the above, it is not surprising that the concept of censure now plays a major role in theorisation about criminal punishment What is much more surprising is that this was not at all the case 40 or 50 years ago, when utilitarian justifications of punishment were dominant both in the academy3 and, at least in some influential jurisdictions, in practice also.4 An important basic difference 1 C Sumner, ‘Rethinking Deviance: Towards a Sociology of Censure’ in C Sumner (ed), Censure, Politics and Criminal Justice (Milton Keynes, Open University Press, 1990), 15 at 28–29 For more on Sumner on censure, see A Amatrudo (ed), Social Censure and Critical Criminology: After Sumner (London, Palgrave Macmillan, 2017) 2 It follows, of course, that views about what should be censured can change over time For example, in England and Wales, the criminal censure of drink-driving is now universally accepted, and homosexual couples may marry But just over half a century ago (before the Road Safety Act 1967 and the Sexual Offences Act 1967), there was no law against drink-driving unless one was incapably drunk, and a fully consensual homosexual act between adult males was a criminal offence See for example T Honderich, Punishment: the Supposed Justifications, revd edn (Harmondsworth, Penguin Books, 1976) Especially in the United States See the short survey of the sentencing regimes of different states in the 1950s in PW Tappan, ‘Sentencing under the Model Penal Code’ (1958) 23 Law and Contemporary Problems 528 Note especially Tappan’s summary of the objectives underpinning the sentencing provisions of the American Law Institute’s Model Penal Code at that time: these ‘provisions … are 294 Michael Tonry primarily rehabilitative purposes.80 He observed that deterrence, rehabilitation, incapacitation, norm reinforcement, satisfaction of the ‘community’s sense of just retribution’ and ‘even socialized vengeance’ all have roles to play and that judges and parole boards must take account of them case by case as they are pertinent.81 Matravers’ example and Henry Hart’s elaboration underlay the core problems of consequentialist theories and indeterminate sentencing that retributive theorists in the 1970s sought to address and remedy Punishing lesser crimes more harshly than greater ones defies common morality and undermines basic social norms Conferring authority on individual judges to choose among and apply irreconcilable purposes assures outcomes that are often based more on judicial idiosyncrasies, personalities and ideologies than on differences between offences and offenders Such broad authority is especially vulnerable to influence by invidious considerations Third, a comprehensive jurisprudence of just punishment would require subjective assessments of blameworthiness David Luban has observed that ‘subjectivity’ lies at the heart of human dignity and that ‘having human dignity means having a story of one’s own’ Subjectivity is essential: ‘Human beings have ontological heft because each of us is an “I”, and I have ontological heft For others to treat me as though I have none fundamentally denigrates my status in the world It amounts to a form of humiliation that violates my human dignity’.82 Plutarch observed of boys playing by a stream on a summer day, ‘Though boys throw stones at frogs in sport, yet the frogs not die in sport but in earnest’.83 The frog’s perspective, Luban’s ‘I’s’ perspective, cannot justly be ignored A just sentencing system must harness the tension between the requirement of fairness that there be general standards that apply to all and the requirement of justice that all ethically important grounds for distinguishing between individuals be taken into account In the introduction, I described a comprehensive jurisprudence of just punishment as consisting of Justice as Fairness, Justice as Equal Treatment, Justice as Proportionality, and Justice as Parsimony Blameworthiness and censure play central roles No sentencing system could be said to be just unless it sets rigid upper limits (keyed to blameworthiness) on the severity of punishment, and unless values of fairness, equal treatment and human dignity are respected 80 Both Matravers and Henry Hart explicitly refer to the purposes of the criminal law rather than of punishment or sentencing, but appear to subsume punishment’s within the criminal law’s purposes HLA Hart, by contrast, distinguishes between the – for him, preventative – purposes of the criminal law and the purposes of punishment: above, n 46 81 HM Hart, ‘The Aims of the Criminal Law’ (1958) 23 Law and Contemporary Problems 401 at 401 82 D Luban, Legal Ethics and Human Dignity (Cambridge, Cambridge University Press, 2007) 70–72 83 Plutarch, ‘Whether Land or Sea Animals Are Cleverer’ in Moralia volume 12, H Cherniss (tr) (Cambridge, MA, Harvard University Press, 1957) 355 Fairness, Equality, Proportionality and Parsimony 295 Human dignity underlies the case for fairness, which largely concerns process, the case for treatment as an equal, which largely concerns substantive decision-making, and the case for parsimony, which concerns the avoidance of gratuitous harm At least rhetorically, it seems to me useful to identify fairness, equal treatment and parsimony as separate requirements of justice rather than describe them as embedded within a single ‘Justice as Human Dignity’ This proposed jurisprudence of just punishment allows judges to make individualised assessments of blameworthiness, and insists that gratuitous harm not be done It recognises the complexity and myriad differing circumstances of human lives It cannot resolve fundamental issues of social and racial injustice but empowers judges to make individualised subjective assessments of offenders’ circumstances and blameworthiness within the constraints set by the four principles of punitive justice It provides solutions to the multiple offence paradox The bulk discount is morally necessary Without it, punishments would be so severe that they would be incompatible with human dignity and so mechanical that they would fail to treat offenders and their interests with equal respect and concern The recidivist premium to the contrary is morally unjustifiable; depriving individuals of the bulk of their remaining lives is as objectionable when it is done piecemeal as when it is done at one time Some of the objections are familiar ones Imposition of increments of additional punishment because of earlier convictions is double counting, effectively punishing offenders a second time for prior offences Punishing a subsequent offence more severely than a first offender is punished for the same offence breaks the link between blameworthiness and deserved punishment In addition, all of the concerns that animate the bulk discount arise Aggregate punishments rapidly become crushing and deprive offenders of unjustly large shares of their lives If the potential aggregate severity of sentences for multiple current convictions call for mercy, the burdens of recidivist premiums call at least as loudly This proposed jurisprudence of just punishment provides a firm foundation for the parsimony principle Richard Lippke has argued that ‘parsimony’ is an empty concept because both retributive and consequentialist theories explicitly reject punishments more severe than are theoretically justifiable.84 Parsimony is better understood, however, as deriving not from punishment principles but from the equality and human dignity principles with which punishment practices must be reconciled Bentham was adamant: ‘All punishment is mischief: all punishment in itself is evil … If it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil’.85 His view was bedded within utilitarianism It is better viewed as coming from outside 84 R Lippke, ‘Parsimony and the Sentencing of Multiple Offenders’ in Ryberg et al (eds), above n 16, 95 85 Bentham, above n at 158 296 Michael Tonry The requirement that all people be treated with equal respect and concern can help address the problem of ‘just deserts in an unjust society’ Punishments of people living fundamentally disadvantaged lives, or who are powerfully affected by mental disabilities or acute problems of drug dependence, should be determined subjectively in terms of the choices and possibilities available to them and not on the false premise that the hard realities of their lives were different There is one important problem, however, that the proposed jurisprudence cannot meaningfully address: determination of cardinally deserved punishments and the anchoring points of penalty scales that are necessary for any system of proportionate punishments to work.86 Those judgments depend on cultural attitudes toward crime, criminals and punishment severity that vary widely and that no mechanical or theoretical fix can resolve Palpable differences exist between countries in such matters: think only of contrasts between the United States and Scandinavia or between England and Switzerland Achieving acceptance of ideas about ordinal proportionality and the moral necessity of inter-offence comparisons in punishment is a more easily achievable goal, and constitutes steps in the right direction The issues discussed in the preceding paragraphs require much fuller exploration and elaboration than is possible here The important thing to recognise, however, is that they raise problems that punishment theories now in use cannot adequately address but that a normative framework incorporating fundamental principles of fairness, equality, proportionality and parsimony could Moving toward a comprehensive jurisprudence of just punishment will require partial abandonment or substantial amplification of most retributive and mixed theories of punishment This change may not be as unlikely as some may believe It will require a paradigm shift, which Thomas Kuhn demonstrated seldom happens in the physical sciences until prevailing ways of thinking change sufficiently to absorb unfamiliar, seemingly heretical ideas.87 However, that is what happened when retributive punishment theories replaced consequentialist ones in the minds of most philosophers and academic lawyers in the 1960s and 1970s The American law professor Albert Alschuler in 1978 bewilderedly described the recent sea change in attitudes toward indeterminate sentencing: ‘That I and many other academics adhered in large part to this reformative viewpoint only a decade or so ago seems almost incredible to most of us today’.88 Robert Nozick in 1981 explained how such things happen: When a philosopher sees that premisses he accepts logically imply a conclusion he has rejected until now, he faces a choice: he may accept this conclusion or reject 86 N Lacey and H Pickard, ‘The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems’ (2015) 78 Modern Law Review 216 87 T Kuhn, The Structure of Scientific Revolutions (Chicago, University of Chicago Press, 1962) 88 A Alschuler, ‘Sentencing Reform and Prosecutorial Power ‘(1978) 126 University of Pennsylvania Law Review 550 at 552 Fairness, Equality, Proportionality and Parsimony 297 one of the previously accepted premisses … His choice will depend on which is greater, the degree of his commitment to the various premisses or the degree of his commitment to denying the conclusion It is implausible that these are independent of how strongly he wants certain things to be true The various means of control over conclusions explain why so few philosophers publish ones that (continue to) upset them.89 It is time for proponents of retributive and mixed theories to adopt and argue for new ‘premisses’ 89 R Nozick, Philosophical Explanations (Cambridge, MA, Harvard University Press, 1981) 2–3 298 Index accountability, 76 Shoemaker’s responsibility model, in, 238 acts of censure, 5–6, 11–13 agent: acknowledgment of crime, 245–6 blame for past acts, 246–7 character of, 239 desert and, 35 identity over time, 244 penal desert and, 247–8 American Friends Service Committee (AFSC) (1971 report), xi anger, Casey on, 25–6 answerability (Shoemaker’s responsibility model), 237–8 Anti-terrorism and Effective Death Penalty Act (AEDPA) (US, 1996), 173 apology, 268–9 remorse and, 268 atonement, 124–5 attributability: Shoemaker’s responsibility model, in, 238 Austin, How to Things with Words, 5, 119–20 censure as performance utterance, 5, 89 felicity conditions of utterances, 5–6, autonomy: citizen’s, 124 person’s and punishment levels, 100 blame: agent’s past acts, for, 246–7 communicative, 119–20 fault and, 259 morality and, 251 righting wrong, in, 259 blameworthiness, 280–1, 284–5 censure and, 290–1 defences for, 284–5 just punishment and, 294 retributivism and, 280–1 bulk discounts in sentencing, 282–3 censure and censuring, xii–xiii, 4, 70–2 agency and, 6–7 blameworthiness and, 290–1 censured party, effect on, 10–11 censuring party, 6–9 censuring person or agency, social role of, 15–16 children, of, 9, 50 communication of, 258–9 condemnation and, 42–3 desert and, 187–205 dialogue and, xiii, 45, 262–4 dissociation and, 82–3 Duff on, 44–5 dynamic see dynamic censure ecclesiastical, 11 failure to, 77, 256–7 felicity conditions of, 5–6, goal and operation of, 69–70 hard treatment and, 89–90, 193–6, 253–4 legal or conventionalised punishment and, Maslen on, 45 moral community and, 274–5 negative, 42–3, 74 offenders’ reactions to, 212–13 penal restraint and, 93–107 positive, 42–3, 44–8, 73–4, 76–82 proportionality and, 83 punitive, 12, 43, 44, 54, 63, 71 reflective, 41–65 remorse and, 267 removal of, resentment and, 19–39 retributivism and, 28–31 sentencing as, 163 social control and, 70–2 social conventions of, 201–4 standing and, 7–9 state censure and moral practices, 70 verbal, 5, 82 wrongdoers, of, 79–80 censure and sanction: consequentialist approach, doubts over, 37–8 criminal conduct and, 29–30 censure theory: application of, 71–2 implications of, 82–3 300 Index incompleteness of, 257–9 origin of, 254 proportionality and, 70 social control and, 74–5 ‘treatment model’ and, 254–7 von Hirsch’s theory of Censure and Sanctions, 3, 12, 42, 70–2, 74, 162, 190 wrongdoing and, 76–7 censure-based approach in sentencing, 143 terrorists and see terrorists and sentencing censured behaviour, 10–11 moral aspects of, 10–11 character: agent, of, 239 assessments, 240 children: censure and censuring of, 9, 50 crime, response to, 54 development of independence, 53–4 civil society: criminalisation and, 22 liberal political order and, 20–2 morality and, 20–1 participation in, 37 civil status, offenders ’restoration to, 271–2 collective interests and victims’ interests, 208–9 commensurate-deserts principle, 32, 196 communication of censure and expression of censure, Duff on, 44–5 communicative blame, 119–20 communicative censure, 129 communicative punishment, Duff on, 116–20 communicative theories, 291–2 punishment, of, 127–8 compensation by offenders, 158 condemnation: censure and, 42–3 wrongdoing and, 14–15 consequentialism, 35, 286–7 containment, 54–6 Bion on, 54–6 critical self-restraint and, 58 experiencing emotions and, 56 process of, 55 punitive power and, 57 sentencing and, 60–2 wrongdoing and, 52–6 control rights: sentencing and, 223 victims’ rights and, 222 crime: agent’s acknowledgment of, 245–6 analysis of, 50–1 boundaries and, 51–2 censure of and state control, 68–9 children’s response to, 54 culpability after, 243 legal claims and, 231–2 temporal significance of (examples), 232–4 crimes against individuals, state response to, 216 criminal conduct and censure and sanction, 29–30 criminal guilt, 236 criminal justice: dialogue in, 262–4 emotions and, 264 righting wrongs and, 261–6 system, purpose of, 193 criminal law: desert and, 31, 34 (UK and US) moral appeal of, 99 criminal proceedings, context and motive, 264–5 criminal punishment: expressive, 210 justification of, 210 theory of, ix–x see also hard treatment; sanctions; sentencing criminal trials and victims’ rights, 219–22 criminal wrongs: historicisation of, 235–6 temporal dimension of, perception of, 231–6 criminalisation and civil society, 22 critical self-reflection, 46–7, 62 punishing authorities and, 47–8 culpability, 142 crime, after, 243 offenders’ censure-based, 176–7 offenders’ punishment and, 229–30 Shoemaker’s responsibility model and, 237–43 danger, vivid, of serious harm, 164 dangerousness: future, and sentencing, 164 increased punishments and, 163–4 intent of defendants to commit terrorist act, 178–9 judgments of, 168–9 pre-inchoate offences and, 167 dead, censuring of, 9–10 decremental strategy, 103–5 attainability (Germany and Netherlands), 104 sentencing and, 103–4 Index 301 desert: agents and, 35 agent’s responsibility for action and penal desert, 247–8 temporality and, 227–51 censure and, 187–205 criminal law and, 31, 34 (UK and US) ‘desert thesis’, 203–4 entitlements and, 190–3 features of penal desert, 248 human behaviour and, 255 human role in, 31–2 ill-desert, penal, 228 judgments, extent of, 247 meanings of, 190–1 proportionality and, 180 sentencing for, 192–3 Sher on, 203, 228, 247 statement, 227–8 static see static desert temporality and, 227–51 desert claims: ‘raw’, 191 types of, 191 desert relation: challenge to, 227–30 temporality of, 228–9 desert theory: concept of, 95–6 retributivist, 35 desert-censure-proportionality-parsimony nexus, 32–3 deserved censure and penal restraint, 93–107 deserved punishment and punishment, 296 desistance, 133–5 ‘desistance range’, 133 obstacles to, 137–8 volume-crime offenders, of, 131–6 deterrence: criminal sanction, and, 90–1 general, 94–8 hard treatment, and, 90–2 Hobbes on, 91 literature on, 91 diachronicity and time frames, 234–6 dialogic and responsive censure, 45 dialogic process (righting wrongs), 260 Discipline and Punish (Foucault, 1977), 111–14 dissociation: censure and, 82–3 complicity and, 80–1 wrongdoing, from, 79 Doing Justice (von Hirsch, 1976), xi–xii, 3–4, 13, 42, 73, 93–4, 100, 110, 114, 123, 141–2, 147, 159, 162–3, 181, 187, 254, 274, 289–90 criticism of, 189 ‘drowning out’ argument, 98–100, 197–8 concept of, 98–9 Duff on, 99 sentencing levels and, 100 dynamic censure, 146–7 consequences of, 147–58 late sentence reviews and, 149–58 limitations on in sentencing enforcement, 157–8 static desert, distinguished from, 142–7 early release: retributive punishment without, 154 retributivism and, 151 risk and, 152 societal attitudes for, change in, 151 emotions: consideration of, 215–16 criminal justice and, 264 experiencing and containment, 56 righting wrongs and, 260 ‘enemy law’ paradigm, 181–2 entitlements: basic, 194 derivative, 194 desert and, 190–3 hard treatment and, 193–201 von Hirsch on, 192 equal treatment: justice as, 278 offenders and, 208, 225 punishment and, 288, 293, 294, 295 expressive needs (victims’ rights), 220 expressive theories of punishment: Feinberg and, 27, 43, 68, 87, 218, 253 moral philosophers and, 210–11 victims in, 209–13 ‘eye for an eye’, 202 fairness: derogation from, 164–5 punishment and, 293 fault: blame and, 259 offenders’, 98, 224–5, 249 Federal Sentencing Guidelines Manual (US), 172 felicity conditions (censure), 5–6, forgiveness, 260, 268, 269 302 Index general prevention, 94–5 definition, 94 in von Hirsch’s theory, reasoning for, 95 studies of, 95 gratitude, Smith on, 23 guilt: consideration of (Shoemaker’s model), 241, 242 temporality of, 236–46 hard treatment, 71, 144 amplifying function, 88 censure and, 89–90, 193–6, 253–4 deterrent role of, 90–2 entitlements and, 193–201 grading function of, 88–9 penal and verbal denunciation, 194 penal censure and, 194–5 punishment and, 96 scaling role of, 87–9 verbal censure and, 219 see also punishment; sanctions harm, 142 maximisation of good and, 34–8 offenders’ punishment and, 229–30 remote and immediate, 224 human behaviour and desert, 255 human development and punishment, 41–65 human dignity and punishment, 293 human rights and penal parsimony, 101–2 imprisonment: appropriate use of, 202–3 arguments against, 201 disciplinary and juridical punishment compared, 112 limiting use of, 200 over-punishing and, 249 reduction of, 201 independence: children’s, development of, 53–4 containment and, 57 indignation, 26, 37 insult, reaction to, 241–2 judgements, making, 35–6 judges, image of, 62 juridical punishment: disciplinary imprisonment, compared with, 112 state policy and, 137 just deserts, 188–90 explanation of, 188–9 literature, in, 190 see also desert theory, desert-orientated penal theory just punishments, 256, 292–7 blameworthiness and, 294 deserved punishment and, 296 determination of, 292 jurisprudence of, 292–7 parsimony principle and, 295 principles of, 277–8 system of, 292 justice: equal treatment and, 278 rehabilitation and, 254–5 late sentence reviews, 149–52 dynamic censure and, 149–58 grounds for, 150 legal sanction, 33 see also punishment; sanctions liberal democracy, 20 liberal justice and punishment, 292–3 liberal political order and civil society, 20–2 liberal state, 65, 122, 123, 125, 127–8 long-term prisoners: repentance and, 129–31 studies of repentance and, 130–1 metanoia (repentance), 126–7 mitigation, progressive loss of and penalty, 100–1, 199 moral: community and censure, 274–5 education and judgement, Smith on, 23–4 perfectionism, 124 philosophers and expressive theory of punishment, 210–11 rehabilitation, 271–2 moral agency: drowning out and, 198 respect and, 75–6 moral authority, 16–17 failure of, 16–17 morality: blame and, 251 civil society and, 20–1 motive and criminal proceedings, 265 multiple offence paradox, 280, 281–4, 295 multiple offences, sentencing for (US), 283–4 (fig) Index 303 non-intervention, rights to, 216 object-relation theory, Winnicott on, 52–4 offence-related responsive factors, 155–6 offence-related responsive actions and rehabilitative actions, 156 offenders: censure, reaction to, 212–13 civil status, restoration to, 271–2 compensation by, 158 culpability and, 176–7, 229–30 dangerous, sentencing of, 165–6 equal treatment of, 208, 225 fault of, 224–5 self-reform of and retrospective punishment, 250 state and, 264 offenders’ punishment: offenders’ life, effect on, 249 proportionality of harm and culpability, 229–30 victims’ right to, 218 volume-crime desistance and, 131–6 ordinal proportionality 106–7, 192, 201 requirements for, 106–7 second-look sentencing and, 153–4 parents and state, differences between, 64 parity, definition, 106 second-look sentencing and, 153–4 parole and second-look sentencing, 152–5 parsimony, 199–200 penal see penal parsimony principle and just punishment, 295 penal desert see desert penal parsimony: human rights and, 101–2 proportionality and, 31 sentencing and, 103 penal reform: Ashworth on, 121–3 von Hirsch on, 121–3 penal restraint: deserved censure and, 93–107 prevention and, 98–105 penal theory, desert-orientated, 87–92 penality: Foucault on, 111–13, 123, 137 social mechanisms, questions for, 113–14 penalty: levels (UK and US), 196 loss of mitigation and, 199 severity of and proportionality, 162–6 penance: Duff on, 118 repentance and, 119 theories, 291–2 penology: authority and, 64 censure in see censure in penology objections to, 64–5 plea, 148 plea bargaining, 285–6 polity and temporal significance of crime (examples), 232–4 post-conviction conduct, 158 post-offence conduct, 143 potential terrorists: sentencing for (UK), 169–72 sentencing for (US), 172–4 treatment overview, 169–74 power to make decisions (victims’ rights), 221 pre-censure punishment theory (Locke), 13–17 pre-inchoate offences, 166–8 anticipatory, 167 dangerousness and, 167 development and history of, 167–8 terror and, 179–80 preventative treatment and respect, 75–6 prevention, 97–8 penal restraint and, 98–105 proportionality and, 105–7 prisoners: long-term see long-term prisoners responsive, identification of, 155–7 sentences, acceptance of, 132 prisons and proportionality, 102, 104–5 (Sweden and Finland) proportionality: cardinal, 192 censure and, 83 censure theory and, 70 constraints and would-be terrorists, 166–9 desert and, 31, 180 ‘desert thesis’ and, 203–4 ordinal see ordinal proportionality prevention and, 105–7 prevention of violence and, 99 prisons and, 102, 104–5 (Sweden and Finland) punishment and, 30, 71, 190 retributivism and, 29 sentencing and, 163 severity of penalty and, von Hirsch on, 162–6 304 Index proportionality in censure, 12–13 proportionality theory, 200–1, 201–4 punishment and, 201–2 pro-social modelling, 273 psychological connectedness and personal identity, 243–4 public prosecutions and victims’ rights, 221 public resources and victims’ rights, 221–2 punishing authorities, 45–6 critical self-reflection and, 47–8 punishment, 14, 30, 36–7, 72–3, 111–14, 277 Beccaria on, 111–12 carceral and juridical contrasted, 114, 123 censure and, 12 communicative theory of, 127–8 consideration of, 257–8 definition, 48 desert-based, 143–4 deserved punishment and, 296 fairness and, 293 familial sphere, in, 49 Foucault on, 111–14 hard treatment and, 96 human development and, 41–65 human dignity and, 293 inclusionary practice, as, 137 increase of and dangerousness, 163–4 individuals, effects on, 285 juridical see juridical punishment just see just punishment legal or conventionalised and censure, legal sphere, in, 49 liberal justice and, 292–3 Locke on, 17 mechanisms of, 112–13 (fig) moral philosophers and, 210–11 morality of and censure, 13–14 multiple values of, 293–4 offenders’ see offenders’ punishment over-punishing and imprisonment, 249 penal objectives not achieved and, 249 proportionality and, 30, 71, 190 proportionality theory and, 201–2 rehabilitation and, 67–8 repentance, reform and reconciliation, 116–17 retrospective and offender’s self-reform, 250 sanctions as, 248 schools, in, 50, 122 social contract theory and, 111–12 state or institutionalised and censure, state policy, 136–8 state punishment, 13, 265 state’s role in, 211–12 subcategories of, 48–9 system, purpose of, 118–19 temporality of, 228 terrorist offences, for, 168, 182–3 threatening, for being, 177–9 under-punishing, 248 wrongdoing and, 68 punishment as censure, 67–84 sources of, 67–9 von Hirsch on, 44 punishment-as-communication, 263 punishment in school system, 49 objections to, Watson’s, 53 punishment levels, 200–1 criteria for assessment, 100 punishment practice: aims of, 36–7 state policy and, 136–8 punishment theory, 12 communicative, 144 expressive see expressive punishment theory repeat offenders and, 100–1 victims’ interests, integration in, 213–19 victims’ rights in, 207–26 punitive censure, 43, 63 rank-ordering defined, 107 reason-responsiveness, 244–5 reconciliation: remorse and, 267 righting wrongs and, 261 state punishment and, 265 reflective censure see censure rehabilitation, 269–74 justice and, 254–5 justification, 153 legal, 270 moral, 271–2 psychological, 269–70 punishment and, 67–8 ‘rehabilitative deal’, x social, 270–1 rehabilitative actions and offence-related responsive actions, 156 release, criteria for, 152 remorse, 148, 266–8 apology and, 268 censure and, 267 characteristics of, 267 Maslen on, xviii, 45, 147, 267 Index 305 reconciliation and, 267 sentencing and, 266 repeat offenders, sentencing of, 100–1, 172 repeat offending, 281–2 repentance, 109–39 deep see deep repentance definition, 117–18 discussion of, 109–10 Duff on, 125 elements of, Tasioulas on, 120–1 long-term prisoners and, 129–31 penal censure theory and, 115–25 penal system, in, Tasioulas on 123–5 penance and, 119 pre-Reformation meaning, 127 state penal systems, in, 121–5 Tasioulas on repentance in penal system, 123–5 repentance as ‘turning around’, 126–9 repentance debate in penal censure theory, 115–25 ‘repentance, reform and reconciliation’ (punishment), 116–17 reprobation, 97–8 resentment, 260 Casey on, 24–5 censure and, 19–39 lack of, 37 moral role of, 22–8 Smith on, 22–4 Strawson on, 26–7, 89–90 respect: moral agency and, 75–6 preventative treatment and, 75–6 responsibility model see Shoemaker’s responsibility model responsive censure, 149 model, 149 sentencing enhancements and, 157 responsive non-offence-related factors, 156–8 responsive offence-related factors, 155–6 restorative justice, 61–2 practices, 59–63 sentencing and, 62–3 retaliation: desire for, 213–15 experiments, in, 214 retribution, 287 retributive: emotions, examination of, 214–15 proportionality, 255 theories, 286–90 retributive punishment, 142–59 without early release, 154 retributivism: blameworthiness and, 280–1 censure and, 28–31 conceptual impediments, 280–5 desert theory and, 35 early release and, 151 extent of, 280–6 Hart on, 28 indeterminate sentencing and, 288–9 Kenny on, 28 ‘limiting retibutivism’, 255, 290–1 literature on, 28–9 multi-offence paradox, 280 Murphy on, 28–9 negative and positive, 288 practical impediments, 285–6 proportionality and, 29 revival of, 287–8, 289–90 sentence modification and, 155 wrongdoing and, 77–8 right to be heard (victims’ rights), 220, 223–4 ‘right to rehabilitation’, 255–6 righting wrongs, 259–61 account of, 259 blame, in, 259 context in, 260–1 criminal justice and, 261–6 emotions and, 260 process, 260–1 reconciliation and, 261 rights, weighing, 199–200 rights-relations and state punishment, 212 (fig) risk: early release and, 152 static risk factors, 157 rootless desert, concluding remarks, 204–5 rule of law, acceptance of, 33–4 sanction and censure, 11–12 consequentialist approach, doubts over, 37–8 criminal conduct and, 29–30 sanctions: consequences of, 36 punishment, as, 248 schools: criminalisation models in, 49–50 discipline in, 48–52 punishment in, 50, 122 306 Index second-look sentencing: ordinal proportionality and, 153–4 parity and, 153–4 parole, distinguished from, 152–5 self, concept of, 238–9 self-integration, 51 self-restraint, critical and containment, 58 sentence enforcement stage, limitations on dynamic censure, 157–8 sentence modification, retributive bases for, 155 sentencing: bulk discounts, 282–4, 283 (fig) censure-based approach, 143 censuring process, as, 163 containment and, 60–2 control rights and, 223 dangerous offenders, of, 165–6 decremental strategy and, 103–4 desert, for, 192–3 dynamic censure and, 148–58 enhancements and responsive censure, 157 extended determinate sentence (EDS), 165 factors, expansion of range of, 147–9 future dangerousness and, 164 indeterminate and retributivism, 288 late sentence reviews see late sentence reviews levels and drowning-out arguments, 100 penal censure and, 143 penal parsimony and, 103 post-sentencing developments, 145 prisoners’ acceptance of, 132 proportionality and, 163 remorse and, 266 repeat offenders, of, 100–1 repeat terrorist offenders (US), for, 172 restorative justice and, 62–3 state’s dialogue and, 263–4 terrorists and, 180–3 ultima ratio principle and, 106 victims’ rights and, 222–5 Sentencing Council (UK), guidelines for terrorist offences (2018), 170–1 sentiments and containment, 55–6 service rights, victims’, 220 severity, 142 penalty, of, and proportionality, von Hirsch on, 162–6 Sheffield Desistance Study, 132 Shoemaker’s responsibility model (tripartite), 236–43 accountability-responsibility, 237, 238 answerability-responsibility, 237–8 attributability-responsibility, 237, 238, 241, 242 social contract theory and punishment, 111–12 social control: censure and, 70–2 censure theory, and, von Hirsch on, 74–5 societal attitudes and early release, change in, 151 standing and censure, 7–9 state: crimes against individuals, response to, 216 dialogue in sentencing, 263–4 offenders and, 64 parents and, differences between, 64 victims’ rights, response to, 216–19 state agencies and victims’ rights, 221 state censure, 146 wrongdoing, of, 72–6 state control and censure of crime, 68–9 state penal systems, repentance in, 123–5 state policy: juridical punishment and, 137 punishment practice and, 136–8 state punishment: reconciliation and, 265 rights-relations and, 212 (fig) static desert: dynamic censure, distinguished from, 142–7 weaknesses of, 145 symbolic action, 89 Tasioulas on repentance in penal system, 123–5 temporality: criminal wrong, of, 231–6 desert, of, 246–50 desert-relation and, 228–9 guilt, of, 236–46 penal desert, and, 227–51 time-frames and, 234–6 wrong, of, 231–6 terror and pre-inchoate offences, 179–80 terrorism, types of offence for (US), 173 Terrorism Act 2006 (TA 2006), 169–70, 171 terrorist offences: pre-inchoate and severe punishment, 182–3 punishment for, 168, 182–3 Sentencing Council guidelines (UK, 2018), 170–1 sentencing for (EU), 171–2 Index 307 terrorists: potential see potential terrorists repeat offenders (US), sentencing for, 172 would-be (US) and proportionality constraints, 166–9 terrorists and sentencing, 180–3 censure-based model of sentencing, 161–83 Theory of Moral Sentiments, The (1759), 22–4 threatening, punishment for being, 177–9 time frames: diachronicity and, 234–6 temporality and, 234–6 Tracking Progress on Probation Study (1997–2013), 133–5 (fig) ‘treatment model’: censure theory and, 254–7 criticism of, 255 trials, participation in (victims’ interests), 220 ultima ratio principle, 105–6 sentencing and, 106 verbal censure and hard treatment, 219 verbal denunciation and penal hard treatment, 194–5 victim statements, 223–4 objections to, 223 psychological aspects of, 225 victims: expressive punishment theories, in, 209–13 neutralisation of, 221 response to, state’s reasons for, 216–17 state’s role in punishment and, 211–12 temporal significance of crimes (examples), 232–4 victims’ interests: categories of and, 220–2 collective interests and, 208–9 integrated in punishment theory, 213–19 victims’ rights, 217 categories of, 220–2 control rights, 222 criminal trials and, 219–22 elements of, 218 offenders, punishment of and, 218 public prosecutions and, 221 public resources and, 221–2 punishment theory and, 207–26 sentencing and, 180–3 state agencies and, 221 state’s response to, 216–19 violence, prevention of and proportionality, 99 volume-crime offenders, desistance of, 131–6 ‘war on drugs’ (US), 179–80 would-be terrorists, punishment of as off-shore penal sub-system, 174–6 wrongdoers: failure to censure, 79–80 just censure and, 73–4 wrongdoing: censure theory and, 76–7 complicity in, 78–9, 81–2 condemnation and, 14–15 containment and, 52–6 dissociation from, 79 individuals’ and complicity, 81–2 judgments about, 217–18 punishment and, 68 retributivism and, 77–8 state censure of, 72–6 wrongs: criminal see criminal wrongs righting see righting wrongs 308 ... different strands of penal theory Studies in Penal Theory and Penal Ethics: Volume Studies in Penal Theory and Penal Ethics A Series Published for the Centre for Penal Theory and Penal Ethics Institute... words that convey censure In other words, Π-ing B without words of censure does not amount to censure, and uttering ‘I hereby censure you’, or another phrase understood to express censure, without... (the censured party), Ø (the censured behaviour), and Π (the act of censure) A. The Censuring Party (A) Who or what may censure? We need not spend too much time debating the idea that censure