The Sentencing Theory Debate: Convergence in Outcomes, Divergence in Reasoning

Abstract

This essay is inspired by the publication of Andrew von Hirsch and Andrew Ashworth's new book, "Proportionate Sentencing: Exploring the Principles." It is the latest installment in a debate that has gone on now for over thirty years between their "just deserts" account of sentencing and its main rival, "limiting retributivism" first set out by Norval Morris and subsequently endorsed and developed by a number of other prominent sentencing writers in the United States such as Michael Tonry, Richard Frase and Kevin Reitz. This debate has heated up recently with the publication of the American Law Institute's draft Model Penal Code sentencing provisions, which explicitly endorse limiting retributivism rather than von Hirsch and Ashworth's just deserts account. We suspect that one of the tacit aims of von Hirsch and Ashworth's new book is to show that the ALI's decision was mistaken.

In this essay, we argue that although both sides in the sentencing theory debate purport to provide over-arching accounts of the law of sentencing, in fact each of them concentrates its efforts on a particular aspect of the enterprise. When advocates of these two accounts are faced with real, live sentencing situations, they tend to favour broadly similar outcomes in most cases. The most striking example of this phenomenon is the endorsement of the Minnesota guidelines system by the major advocates of both accounts.

Limiting retributivism has always been concerned primarily with criminal justice policy-making and institutional design. Morris, Tonry, Frase and Reitz focus much of their energy on questions such as the composition of a sentencing commission, its procedures for setting overall penalty levels, designing sentencing alternatives to prison and probation and - as a question of institutional design - the regulation of judicial discretion in sentencing. It is not surprising that the American Law Institute's new draft Model Penal Code sentencing provisions, which are focused squarely on those same questions of overall criminal justice policy and institutional design, should endorse this approach.

Von Hirsch and Ashworth's just deserts account, although it does not entirely ignore questions of policy and institutional design, is primarily concerned with the justification of state coercion through the mechanisms of sentencing. For those who are concerned with the special role of the sentencing court as a "forum of principle," von Hirsch and Ashworth provide the best account available - the most thorough, the most thoughtful and the most rigorous.