Penal Philosophy and Sentencing Theory Research Paper

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Many penal philosophers think that offering a justification of the state’s right to punish is particularly urgent (and difficult) precisely because punishment involves doing things to people that would, outside the practice of punishment, be gross rights violations. That is, punishment typically involves imposing some deprivation – for example, the removal of property or freedoms – on a person for committing an offense and this stands in need of justification. Yet, despite this motivation, many theories of the justification of punishment say surprisingly little about the detail of sentencing and penalties. This research paper considers the various rationales for sentencing with a view to showing both how different justifications of punishment have different implications for sentencing theory and practice and how reflecting on sentencing matters can shed light on the justification of punishment. The paper considers first consequentialist theories – that is, theories that justify punishment by reference to the net benefits that accrue through punishment in comparison with any other form of social control (or doing nothing) – and then desert-based, retributive, theories. Finally, it considers some questions of the relationship between theory and practice.

Punishment And Sentencing


Punishment – or at least state punishment – involves the intentional infliction on an offender by a proper authority of “pain or other consequences normally considered unpleasant” for an offense against legal rules (Hart 1968, pp. 4–5). In addition, it involves the expression of moral condemnation or censure (Duff 2007; Feinberg 1970). When a court passes sentence, it gives shape to the particular consequence to be visited on the offender. In practice, the options available to the court may be limited by guidelines or statute and the court may not be explicit in justifying the use of one penalty rather than another. However, the use of punishment in general, and of particular penalties, requires justification and those justifications tend to fall into two broad categories: consequentialist and retributive.

For consequentialists, punishment is justified because its consequences – specifically, having the system of punishment with its associated penalties – can be expected to yield higher net benefits than having an alternative system of social control or having no such system. This may be because punishment reduces future instances of criminal behavior through deterrence, rehabilitation, or incapacitation.

For retributivists, punishment is justified because it is deserved by the offender for his offense. It may be that good consequences also follow, but the justification of punishment does not appeal to these consequences. What, then, do these broad theories of punishment imply for sentencing theory (insofar as we can distinguish sentencing theory and penal philosophy) and practice?


Deterrence is typically split into “special” and “general.” Special deterrence is aimed at the particular offender and is sometimes discussed in relation to the giving of more substantial punishments to repeat offenders. However, it is not advanced as a general theory of sentencing. This is perhaps a reflection of the lack of empirical evidence when it comes to special deterrence and of the fact that a sentencing scheme that was genuinely tied to special deterrence would have to allow specific, individualized sentences for each offender in relation to his particular likelihood of reoffending. Such a sentencing scheme would lack all consistency and would, in any case, be unworkable.

General deterrence addresses not the particular offender in court, but potential offenders throughout the population. If the general justifying aim of punishment is to secure good consequences by reducing criminal behavior, then it is argued that the mechanism by which it does that is general deterrence. The origins of the modern approach are most often associated with the great utilitarian philosopher Jeremy Bentham. Bentham thought the infliction of pain was, other things equal, an evil, but the threat – and where that threat failed, the infliction – of pain could be justified if it secured better future consequences than would be achieved by any alternative action or policy. Assuming that the addressees of the system (that is, ordinary citizens) were motivated by the pursuit of pleasure and the avoidance of pain, Bentham argued that criminal sanctions should be set at just that level required to change the outcome of the “hedonic calculus” for each individual in favor of what would be conducive to the maximization of the general good. Moreover, Bentham went on, penalties should be such as to “induce a man to choose always the least mischievous of two offenses” by ensuring that “where two offenses come into competition, the punishment for the greater offense must be sufficient to induce a man to prefer the less” (Bentham 1970, pp. 168). That is, he developed an account of penalty scales (Bentham 1843).

In thinking of people as rational calculators set on maximizing their own interests and susceptible to changes in the payoffs of different actions, Bentham’s theory has much in common with contemporary proponents of the economic theory of law such as Richard Posner (Posner 1985). However, critics of the position have pointed to flaws both in the empirical claims made on behalf of general deterrence and in its normative foundations.

Empirical Questions Around General Deterrence

Empirical questions around general deterrence revolve around the overall claim that the threat of legal punishment reduces offending and the claim that marginal changes in the severity of sanctions has an effect on rates of offending. The difficulty with the first of these claims is in establishing that it is the threat of punishment rather than anything else that stops people from breaking the law. Moreover, insofar as the theory posits an effect that happens because people reason about what to do as rational, self-interested calculators, the account may explain some people’s behavior and not that of others. It may simply not be true that certain kinds of offenders do accurately balance the factors for and against their offending in advance (even when they know, for example, what penalty they are likely to be given and the likelihood of being caught). In short, general deterrence may be at best a selective explanation of law-abiding behavior because many offenders do not think as Bentham and modern economists believe they think (Doob and Webster 2003).

A similar problem arises with the empirical evidence in relation to the effects of marginal changes in sentencing severity or probability of conviction. In a review of research, Andrew von Hirsch and his coauthors identified the factors that would need to be true for such marginal changes to have an effect on a potential offender’s behavior. That offender, they argued, would need to know about the change; he would need to include the increased or decreased risks of suffering punishment in his decision as to whether to offend; he would need to believe in a realistic possibility that he might be caught and that the penalty would be applied to him; and he would need to be willing to adapt his behavior in the light of these new considerations (von Hirsch 1999). The conclusion of the study is that while there is some evidence of a link between offending and the certainty of punishment, there is far less evidence of a link between offending and the severity of punishment (see also Bottoms and von Hirsch 2011).

Normative Questions Around General Deterrence

Insofar as deterrence theories are embedded in, and result from, consequentialist accounts of punishment, they are subject to the moral criticisms that are often leveled at those accounts. The problem is a general one: Consequentialist accounts value the aggregate (sometimes the average) good achieved in the future. We are to do what will, in Bentham’s famous phrase, achieve “the greatest happiness of the greatest number.” But, in being concerned for the greatest happiness (or utility), the theory leaves out questions of the distribution of utility; it fails to pay attention to what John Rawls (1971, p. 27) calls, “the distinction between persons.” For this reason, it is alleged, if the calculation dictates it, it may be not merely morally permissible, but morally obligatory, to frame and punish an innocent person (McCloskey 1968) or to punish an offender far in excess of what is usual to make an example of him.

Consequentialist writers have responded to this kind of criticism by insisting that the theory is best thought of as addressing rules and institutions and not individual actions (Goodin 1995; Rawls 1955/1999). In that case, they argue the system of rules in relation to criminal justice and the range and type of penalties that best promote long-term good will be much the same as is found in current liberal systems. That is, the rule “only punish those (believed to be) guilty and not the innocent” will better promote the good than a rule that allows the innocent to be sacrificed each and every time that particular act will have better long-term consequences than any alternative. However, few have been convinced by this argument in part because of doubts about the claim that the usual procedural rights and protections of (suspected) offenders will ensure long-term utility, and in part because even if it delivers the right answer (not to hang the innocent man), it does so for the wrong reasons. The innocent man deserves to be spared because it would be wrong to kill him, not because a rule against hanging innocents secures better consequences than its opposite (Matravers 2000, pp. 17–23).

The idea that the justification of punishment and of the penalties it imposed must be grounded in the requirement “to preserve and increase the welfare of the state” (Michael and Adler 1933, p. 340) was prevalent for much of the century prior to the 1960s (Tonry 2011b, pp. 14–18). It seemed to some writers to be the only “rational” basis for sentencing (Walker 1969). However, from the 1970s onward, the theory came under sustained criticism. In moral theory from neoKantian writers including, and inspired by, John Rawls and in penal theory by the “Just Deserts” movement. Yet, we continue to believe – and to find evidence for – the claim that the whole criminal justice system must surely have something to do with reducing future crime rates and that taken as a whole, it does deter crime (Robinson and Darley 2003, 2004). Moreover, statutes and judges continue to refer to deterrence at the point of sentencing. So, whatever its philosophical difficulties, it is clear that deterrence is not yet moribund in practice.

Incapacitation And Rehabilitation

At the high point of utilitarian welfarist thinking about punishment (in roughly the middle of the Twentieth Century), it seemed obvious to writers on the criminal law that a rational approach to punishment would eschew retributivism as “fallacious” (Michael and Adler 1933, p. 341) and barbaric. Instead, it seemed clear that if the welfare of the state was to be increased, then antisocial behavior, and those who committed it, needed to be dealt with “scientifically.” Offenders would be “treated” under the careful eye of experts and until “cured” would generally be held away from the general population. For the influential social and legal thinker, Barbara Wootton, the criminal law was irrational in its concern with intentions and mental states prior to conviction. Rather, mens rea considerations mattered only “after a breach of law has been proved” because of “the light which they throw on the likelihood of [the offender] offending again, and upon the most hopeful way of dealing with him” (Wootton 1978, p. 224). Sentences should be indeterminate and offenders released when, or if, their individualized treatment plans proved successful.

There were individual voices of dissent. For example, CS Lewis’s (1949) “The Humanitarian Theory of Punishment” offered the argument that the treatment model reduced persons from choosing agents to manipulable things. By the late 1960s, those voices had increased and by the 1970s become a clamor (Frankel 1972; Kleinig 1973; Morris 1974; von Hirsch and Committee for the Study of Incarceration 1976). The charge was normative in that utilitarianism treated people as mere objects to be manipulated; political in that indeterminate sentences were racially biased and unfair; and empirical in that increasing doubts were expressed about the efficacy of treatment.

Remnants of both incapacitation and rehabilitation nevertheless remain in contemporary penal philosophy and sentencing theory. With respect to incapacitation, governments (of all persuasions) have responded to the risks created by so-called dangerous persons – often sex offenders – by allowing incapacitative sentences or post-sentence restrictions such as sex-offender registers. However, the policy has largely drifted free of any theoretical foundation in a theory of punishment. Rather, it exists as a bolt-on public policy that philosophers have approached as a discrete problem. The question is, can – and if so, how should – a liberal society restrict the freedoms of some for purely or primarily preventive reasons? The best answer to that is that any such policy is justifiable only if: (1) the potential harm was sufficiently grave; (2) the prediction technology was sufficiently accurate; (3) the preventive response was maximally humane and minimally intrusive under the circumstances; and (4) if the preventive action was preceded by adequate due process (Morse 1999, p. 297). For many critics, condition (2) is seldom met given the unreliability of current predictive judgments (Monahan 2004).

Similarly, rehabilitation is not regarded by most contemporary penal philosophers as providing an overall theory of punishment or criminal justice, but that is not to say that it is redundant in sentencing decisions. Two different motivations have sustained rehabilitative programs: first, a humanitarian desire to help those in incarceration many of whom have mental health issues, drug issues, and basic training needs; second, increased frustration with rates of recidivism that spawned the “What Works?” movement – a political movement keen to subject policy to evidence-based evaluation – which revitalized interest in techniques for anger control, the use of cognitive behavioral therapy, and other techniques of behavioral modification. This focus on the “good done” by legal processes (including arrest, trial, and punishment) has developed into a small but significant movement under the title of “therapeutic jurisprudence”, which (as the name suggest) aims to assess criminal justice institutions against a standard of therapeutic usefulness (Wexler 2008; Winick 1997).

In short, incapacitation and rehabilitation remain important parts of public policy and sentencing practice. But, they do so largely as discrete elements and not as the result of an overall theory of punishment in which the welfare of society is the only desideratum.

Retributive Theories

Retributive theories of punishment go back (at least) to the great German philosophers Immanuel Kant and Georg Hegel. Following the assault on indeterminate sentencing in the 1970s, and the more general philosophical critique of consequentialist thinking at around the same time, retributivism came back into fashion for the rest of the century. Retributivists hold that punishment is justified when, and because, it is deserved (although the exact sense of desert is contested (Matravers 2011)). More precisely, the argument is that those who culpably commit criminal offenses deserve censure and that censure should take the form of a penal sanction – so-called hard treatment. Most importantly for the development of a retributive sentencing scheme, that hard treatment must be proportionate both in the sense of cardinal proportionality (the penalty should be fitting or commensurate with the wrong) and of ordinal proportionality (crimes of comparable seriousness ought to receive penalties of comparable severity).

The precise way in which retributivists defend their theories varies. For Michael Moore (Moore 1987, 1997), punishment is good when and because it is deserved and this judgment and the associated penalties are a matter of what is dictated by a correct account of morality. For Antony Duff, it is censure that is deserved and hard treatment is merely the vehicle through which that censure is communicated and through which the offender can show penance (Duff 1986, 2007). For Andrew von Hirsch and Andrew Ashworth, retributivism is a mixed theory in which censure addresses us as moral beings and hard treatment offers a “prudential supplement” encouraging us to keep to the law (von Hirsch 1993; von Hirsch and Ashworth 2005).


The principle of proportionality is very attractive. If punishment is an exercise in blaming, then the penalties must reflect this in the sense both that the penalty must be at an appropriate level and that more serious wrongs deserve more blame and so more severe punishment. This also captures a very important commitment to equality and justice often glossed as “treat like cases alike and different cases differently.” That is, if two offenders commit crimes of equal seriousness with equal culpability, then they should be punished equally. Moreover, once an account can be given of the anchoring points of the scales (the least and most serious offenses and the least and most severe penalties), it appears to offer a workable translation of a theory of punishment into a sentencing scheme.

However, the proportionality account of punishment is not without its critics. For “pure” censure-based theorists, the addition of hard treatment as a prudential supplement treats citizens as things to be coerced rather than agents to be reasoned with, and threatens to “drown out” the moral message of the law (see the exchange between Duff and von Hirsch in Matravers 1999). However, even those who accept the necessity of hard treatment as a legitimate part of punishment have queried the usefulness of proportionality as a guiding principle. The criticisms in part focus on the theory’s workability and in part on its implications for sentencing practice.

A punishment scheme based on proportionality presumes that we can accurately measure offense seriousness and culpability, and that we can then match that to a point on a penalty severity scale. These things pose a significant challenge to proportionality theorists. In relation to offense seriousness, what is needed is a way to put together on one scale crimes such as assault by an individual and commercial pollution. In relation to culpability, in principle, the theory needs to assess the subjective state of the offender, but in practice may have to rely on objective measures such as the absence or presence of previous convictions. Proportionality theorists are aware of these (and other challenges) and have tried to meet them (Ashworth 2010; von Hirsch and Ashworth 2005), but not everyone is convinced that they have been successful (for a helpful summary of the criticisms, see Tonry 2011b, pp. 224–34).

Perhaps even more significant is the need to anchor the scale of penalty severity. The bottom anchoring point – the penalty to be associated with the least serious offense – may be reasonably easy to fix in that many jurisdictions may have something like a police caution. However, what of the upper anchoring point? Should this be capital punishment (or worse), life imprisonment without the possibility of parole, 21 years, or less? Without an answer to this question, the scheme is inadequate.

Proportionality theorists have reached for a variety of principled, and socially contingent, ways of fixing the upper anchoring point. As noted above, one might worry, for example, that too severe punishments will “drown out” the moral message conveyed by the law. The problem the account faces is that insofar as the penalty conveys proportionate blame, different societies, with different histories and practices, will think different overall levels of suffering needed to do this accurately.


In contrast to the equality and proportionality required by the proportionality account, Norval Morris (1974) and others have argued for a principle of parsimony. By “parsimony” it is meant that punishment levels ought in general to be set such as that offenders receive “the least severe sentence consistent with the governing purposes of sentencing” (Tonry 1992, p. 81). In developing this account, Morris and others have come to think of desert as a “limiting” principle (Frase 2004) such that offenders should receive the least severe “not undeserved” sanction from a range in which the upper point is consistent with proportionality, but the lower bounds allow for individualization of sentences and parsimony. Such an account is still hostage to a theory of cardinal desert, but its relative vagueness would, its proponents suggest, at least allow greater justice to be done to each particular offender; justice that would be sacrificed by the fetishizing of proportionality. Exactly that discretion, though, is what bothers proponents of proportionality (perhaps mindful of the way it was used to disadvantage minority groups in the past).

Theory And Practice

Following the breakdown of the consequentialist consensus in the final third of the twentieth century, broadly retributive theories of punishment took center stage and, by-and-large, remain there (although see the essays in Tonry 2011a).

The associated “just deserts” movement, and its various political analogues like the campaign for “truth-in-sentencing,” was dominant, but for a shorter period and not without challenge. Throughout the same period, and in particular after the mid-1980s, many sentencing policies that explicitly violated proportionality were passed. Mandatory minimum sentences for drugs offenses, sexual offenses (particularly against children), and possession offenses (particularly of child pornography) have meant that these crimes attract penalties far above those given for what might be thought of as roughly equally serious violent crimes. Another example is California’s notorious three-strikes law, which means that relatively trivial third offenses could attract very severe penalties, and there are many others.

As noted above, other less retributive policies – grounded in therapeutic jurisprudence or restorative justice – also flourished in corners of the criminal justice system often because they were perceived to “work”; in particular to reduce recidivism.

Very few of these policies can be said to flow directly from a fully worked-out philosophical position on the justification of punishment. Yet, it would be absurd to say that “theory does not matter.” Policies do change as a result of theoretical reflections and will no doubt continue to do so. However, sentencing – perhaps more than any other part of the criminal justice system – is political and pluralistic. It is political in that it is a highly visible and politically controversial. To be “soft on crime” is, in many political systems, to court political disaster (Lacey 2008). It is pluralistic in that, at the point of sentencing, judges in systems where there is discretion will often call upon many considerations (an intuitive notion of desert, the need to express the community’s blame, deterrence, the risk posed by the offender, the offender’s potential for reform, and so on). Such pluralism can sit ill with philosophers of punishment who seek solutions which are logically consistent and morally coherent and defensible.

That said, precisely because crime is a politically sensitive issue, and because in many jurisdictions, judges are limited in their discretion by mandatory sentences or restrictive sentencing guidelines, it is vital that moral and penal philosophers continue to subject sentencing rationales to critical analysis. And, in doing so, they will inevitably call on overall accounts of the general purpose, and justification, of punishment even if those accounts do not always translate easily into particular sentencing outcomes.


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