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Sentencing: desert and deterrence

Video on sentencing, desert and deterrence.
In general terms, sentencing is the part of the criminal justice process where a particular punishment is imposed on an offender. The sentence is handed down in open court, and in that sense, the act of sentencing is part of the public administration of justice. It is the point at which society says to the offender, through the sentencing judge, ‘you have done this thing which was against the law, and this is what will happen to you as a result.’ If you asked people why we sentence offenders, then perhaps the quickest and most regular answer which we would hear would be ‘because they deserve it’.
When somebody does something wrong, then on the assumption that they have done it voluntarily, and that there are no special extenuating circumstances, we think that they deserve to be called to account for their wrongdoing. Sentencing is the process through which we give the offender their ‘deserts’. There is a general principle that we should sentences should be proportionate. This is one way of saying that the ‘punishment should fit the crime’. But we then need to have a sense of what ‘fits’. We need to think about how much punishment, and consequently what sentence a particular offence – say robbery - deserves, on its own terms.
And we then need to think about whether, and why, another offence is, in broad terms, worse or less bad than that. So, for example, is assault occasioning actual bodily harm worse than robbery? We have to ask those questions in order to know what we think the range of sentences available for robbery and for assault occasioning actual bodily harm should be. And if we are going to have a rational sentencing scheme for the whole of the criminal law, we should be able to answer the questions, ‘how bad is offence X?’, and ‘is offence X worse than offence Y?’ for all criminal offences.
And that is obviously difficult – not least because not everybody would agree on the answers People have thought very differently about crime and punishment in the past and even today there are huge differences in approach between, say, Norway and Texas. We need to be open to new ideas and not let ourselves think only in terms defined by what we currently do.
So sentencing is not all about desert. Coming from a different angle, we might also sentence somebody to encourage them not to engage in the wrongful conduct again. Perhaps we are also wanting to send a message to other people that ‘if you do this thing, then bad consequences will follow for you’. This idea of trying to dissuading people from offending is referred to as deterrence. But this is problematic too. You could imagine for example, that one way of deterring people from committing offences might be to impose a really severe sentence on one offender – say a life sentence for dropping litter – to ‘send a message to other people’. There are some issues here.
The most fundamental is perhaps that we would be giving the person who was sentenced to life imprisonment for littering a sentence – that by any reasonable measure - far in excess of what is just. We would in effect be using that person as a means to an end – to send a message – and not treating them equally in relation to others. Another problem is that we don’t really have a clear sense of whether and to what extent deterrence actually works. If you want to base a sentencing regime on deterrence, then you should be able to support the claim that the heavier the sentence for a crime, the less likely somebody is to commit it.
But it’s not clear that that is the case: there is some evidence that what deters people from offending is not so much the magnitude of the possible sentence, but the chance of getting caught. In which case, you would increase deterrence through the way you organised policing, rather than through your sentencing laws and policies.

In this video Matt Matravers introduces the idea and function of sentencing and discusses how the practice of sentencing might be informed by principles of desert and deterrence. He also discusses the significance of the principle of proportionality to sentencing schemes.

You might want to reflect on the extent to which the principles of desert and deterrence are and are not compatible with each other. Do you find either principle intuitively more appealing? If so, which one? Why?

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From Crime to Punishment: an Introduction to Criminal Justice

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