CSPS- Maya Edelstein

‘Punishment is riven with ambivalence, and an attempt to constrict it to a single purpose will always lead to dissatisfaction because it will entail the suppression of other ambitions and emotions.’ (CANTON, 2017).

By Maya Edelstein

As Canton himself acknowledges, attitudes to punishment are largely driven by intuition, as shaped by emotion (per Karstedt) and social attitudes and upbringing.21 Thus, there are inevitable tensions and disagreements within this field. Different figures within the criminal justice system (“CJS”) and society at large will embrace different purposes for punishment, and be satisfied by different results, perhaps aligning with different penal philosophies – some retributivist, some consequentialist. As such, satisfaction is difficult to measure; it largely depends upon whose satisfaction we’re considering, and even within a specified target audience, there may be internal conflicts. Therefore, it must be questioned whether a single purpose to punishment suppresses other ambitions, and whether it is this that leads to dissatisfaction –or if there will be dissatisfaction regardless of the purpose(s) embraced.

Ambivalence?

Intuition and emotions, which play a significant role in one’s attitude to punishment, are not universal. Thus, a penal system that satisfies one person may not satisfy another. However, differences in opinion between different people are not the only example of ambivalence regarding punishment –opinions may be self-contradictory and complex, so it is difficult to artificially isolate a single objective for punishment even within one’s own mind.

This is mirrored in modern penal theories, generally considered to be on opposing ends of the spectrum: the modern ‘just deserts’ retributivist theory proposed by von Hirsch, and the consequentialist utilitarian theory.22 Proponents of retributivism believe that punishment is only justified if the offender has done something wrong and so deserves said punishment. Under this view, punishment’s main aim is to pose a moral judgment of rational and autonomous agents, its practical consequences irrelevant. ‘Just deserts’, in particular, emphasises the need for censure and proportionality. As opposed to

21 Canton, R., 2018. Probation and the philosophy of punishment. Probation Journal, 65(3), pp.252-268. 22 Von Hirsch, A., 1992. Proportionality in the Philosophy of Punishment. Crime and Justice, 16, pp.55-98. 9

this purely “backward looking” theory (as dubbed by Ashworth), under the utilitarian perspective, the most important element of punishment is its consequence, because the only way in which the pains of punishment may be justified is through the greater good they cause.23 Thus, the two seem to be completely distinct and opposing views of punishment, calling for different aims. However, this fails to account for some overlaps between the two theories. For instance, while deterrence is a consequence of punishment and would thus seem to be an appropriate aim only under a consequentialist penal theory, it is also acknowledged as a worthy aim in ‘just deserts’ (though a secondary purpose and only operating within an ethical framework). It seems that even these supposedly opposing penal theories are somewhat ambivalent as to their aims; if so, how can the average person avoid such ambivalence?

Dissatisfaction due to suppression?

If the CJS were to embrace only one penal theory and a purpose for punishment consistent with the theory (e.g. censure in a just deserts framework or crime reduction under utilitarianism), supporters of other theories would inevitably be dissatisfied. However, the overlaps between the theories mitigate this, as they suggest that embracing one theory will not completely suppress other ambitions. Nonetheless, even if other ambitions and emotions are not suppressed, embracing only one penal theory might cause dissatisfaction for other reasons.

One such reason is that both penal theories summarised above are flawed in some way. Though there are a multitude of flaws in each, I will only focus on a few. Firstly, ‘just deserts’ is intended to ensure proportionality through the ordinal and cardinal scales suggested by von Hirsch.24 However, this is marred by the subjectivity of offence seriousness (as ordered by the ordinal scale) and the severity of punishment which would be proportionate to it (ordered by the cardinal scale). Both are affected by societal and cultural norms, which may also change with the times. For instance, sexual offences may once have been seen as far less serious than they are now, placing lower on the ordinal scale and warranting less severe punishment. In some cultures, this may still be the case. Thus, a core element of retributivism – proportionality – is undermined.

23 ASHWORTH, A., 1986. PUNISHMENT AND COMPENSATION: VICTIMS, OFFENDERS AND THE STATE. Oxford Journal of Legal Studies, 6(1), pp.86-122. 24 Von Hirsch, A., 1992. Proportionality in the Philosophy of Punishment. Crime and Justice, 16, pp.55-98. 10

Utilitarianism is also flawed. A core criticism of it is that it may reduce people into devices, rather than recognising their moral agency. A practical example of this is exemplary sentencing in General Deterrence approaches. Though utilitarianism assumes that humans are rational creatures by assuming that punishment can affect their decisions regarding crime, it turns punishment into a way of altering society rather than reacting to a person’s own behaviour. This may point towards an internal paradox – if people are rational enough to make a cost-benefit analysis of committing crime (as deterrence supporters assume), then how not treating them as creatures with agencies be justified? As argued by C.S Lewis, this is also less humanitarian – as it forces offenders to conform to societal expectations, substituting their personality with society’s ideals.25 A purely utilitarian approach may also give rise to disproportionate sentences. Though it involves the principle of parsimony (Bentham), demanding that punishment be used only to the minimum extent that’s needed to reduce crime and thus supporting proportionality, it is challenging to deduce what might be enough to reduce crime.26 This is because motivations for crime are highly subjective; this is supported by Rex’s 2005 study on effective supervision, highlighting the role that moral and normative concerns may play in deterrence.27 Without the intrinsic requirement of proportionality that comes with retributivism or an effective parsimony principle, utilitarian purposes for punishment may result in disproportionality.

Both purely retributivist and purely utilitarian purposes would give rise to significant issues. Constricting punishment to one such goal would lead to dissatisfaction, not necessarily because it suppresses other ambitions but rather due to internal flaws. However, it is submitted that bridging different purposes together would not necessarily reduce dissatisfaction. In England and Wales, s.57 of the Sentencing Act 2020 sets out multiple punishment purposes. This broad discretion afforded to judges in deciding which objectives to prioritise can lead to inconsistency in sentencing and potentially creates room for

25 Lewis, C. and Babbage, S., n.d. C.S. Lewis on punishment. 26 Corry, J., Bentham, J. and Everett, C., 1946. The Limits of Jurisprudence Defined. Being Part Two of an Introduction to the Principles of Morals and Legislation. The Canadian Journal of Economics and Political Science, 12(2), p.234. 27 KLECK, G., SEVER, B., LI, S. and GERTZ, M., 2005. THE MISSING LINK IN GENERAL DETERRENCE RESEARCH*. Criminology, 43(3), pp.623-660.

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discrimination. This is supported by Hood’s (admittedly dated but still interesting) 1992 study, which concluded that differences in sentencing between BAME defendants and white defendants were largest with offences regarding which judges had more discretion.28 Such an unstructured range of purposes may also create vulnerability to societal trends. Populist punitiveness, for instance, seems to be sweeping England and Wales, as is reflected in decline in community orders and increase in custodial sentences in recent years (see: Hills and Mews, 2018)29 – in 2020, there was a 24% increase in offenders sentenced to immediate custody for drug offences compared to the year ending March 2019 (MoJ, 2020).30 Thus, while allowing flexibility in punishment purposes allows more ambitions to be taken into account, this could undermine the CJS’s legitimacy and simply undermine various ambitions and purposes at the whim of policy-makers. While those who agree with policy-makers’ values at that particular point in time may be satisfied by this, others would not be.

28 Hood, R. and Cordovil, G., 1994. Race and sentencing. Oxford: Clarendon Press. 29 Ministry of Justice, 2019. e impact of short custodial sentences, community orders and suspended sentence orders on reoffending. 30 Ministry of Justice, 2021. Criminal Justice Statistics quarterly, England and Wales, October 2019 to September 2020.

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