Double punishment and punishing character: The unfairness of prior convictions

Criminal Justice Ethics

Volumn 19, Issue 1, 2000, Pages 10-28

  Bagaric, Mirko ^a  

^a DEAKIN UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 25444474027     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.2000.9992081     Document Type: Article

References (216)

1. Other serious shortcomings of the sentencing system are discussed in Bagaric, The Road to Nowhere 21 SYDNEY L. REV. 587 (1999).
2. See Stolzenberg and D'Alessio, Three Strikes and You're Out: The Impact of California's New Mandatory Sentencing Law on Serious Crime Rates, 43 CRIME & DELINQUENCY 457 (1997).
3. See N. Walker, PUNISHMENT, DANGER AND STIGMA 127 (1985).
4. This has been termed flat-rate sentencing: see A. Ashworth, SENTENCING AND CRIMINAL JUSTICE 152 (1995).
5. Id. at 153.
6. Henham, Anglo-American Approaches to Cumulative Sentencing and the Implications for UK Sentencing Policy 36 HOWARD L. J. 263, at 266 (1997).
7. This theory is discussed at length below.
8. R. Fox & A. Freiberg, SENTENCING: STATE AND COMMONWEALTH OFFENDERS 269 (2nd ed. 1999).
9. For example, see Baumer 166 C.L.R. 51, at 58 (1988).
10. Veen (No 2) 164 CLR, 477 (1988) (emphasis added).
11. The connection between prior convictions and moral culpability is also raised in Mulholland 102 F.L.R. 465, at 478 (1991).
12. See O'Brien and Gloster (Unreported Court of Criminal Appeal (Vic), Oct. 18. 1996).
13. See Veen (No 2) 164 CLR, 477 (1988).
14. See also Marshall v Llewellyn 79 A. Crim. R. 49 (1995).
15. For more detail regarding the relevance of prior convictions in Australia, see R. Fox & A. Freiberg, supra note 8, at 267-72.
16. Sentencing Act (1991) Vic, ss 6A-6F.
17. Termed continuing criminal enterprise offenses: Sentencing Act (1991) Vic, s6H, Schedule 1A.
18. Sentencing Act (1991) Vic, ss 18B(1)(a), 6.
19. As defined in the Sentencing Act (1991) Vic, s3.
20. Sentencing Act (1991) Vic, s18A.
21. Sentencing Act (1991) Vic, ss 18B(1)(a), 6(a).
22. For example, see Sentencing Act 1997 (Tas), s 19, where a prior conviction is a pre-requisite to an indefinite sentence.
23. See also Penalties and Sentences Act 1992 (Qld), s162.
24. Sentencing Act 1995 (NT), s65.
25. Namely for class 5,6,7 or 8 offenses: see Criminal Law (Sentencing) Act 1988 (SA), s22(1).
26. These offenders are termed habitual offenders: Criminal Law (Sentencing) Act 1988 (SA), s22.
27. The offenses include criminal damage, stealing (but not shoplifting), unlawful entry into buildings and unlawful use of a vehicle These provisions were introduced via amendments to the Juvenile Justice Act 1983 (NT) and the Sentencing Act 1995 (NT) and came into operation in March 1997.
28. The sentence must be actual imprisonment, not home detention or a suspended sentence.
29. For a discussion of these provisions, see Warner, Sentencing Review 1997 22 CRIM. L. J. 282, at 284 (1998).
30. Flynn, One Strike and You're Out 22 ALTERNATIVE L. J. 72 (1997), where the Northern Territory provisions are criticized on the basis that there is no distinction between trivial and serious types of breaches; they breach the principle of proportionality; there is no evidence that mandatory sentences are effective deterrents; discretion shifts from the judiciary to the police; and that because there is no reduction for a guilty plea, there will be more contested matters and court delays. Western Australia also has mandatory three-strikes burglary laws, which impose a minimum twelve-month jail term for a third burglary. For a discussion of these.
31. See Morgan, Capturing Crims or Capturing Votes: The Aims and Effects of Mandatories 22 U.N.S.W. L.J. 267 (1999).
32. 3 Cr. App. Rep. (S) 245 (1981) (emphasis added).
33. See also Cohen 6 Cr. App. Rep. (S) 131 (1984).
34. As an example, he cites the case of Bailey (1988) 10 Cr. App. R. (S) 231, where at first instance the offender who had an extensive criminal history was sentenced to two years imprisonment for theft of a nightdress and eighteen months for burglary of four packets of fish from a hospital freezer (the terms were consecutive). The Court of Appeal reduced these sentences to fifteen months and three months respectively (consecutive), after commenting that prior criminal history cannot be permitted to impose a disproportionate sentence.
35. As A. Ashworth, supra note 4, at 158, however, notes fifteen months for a feeble attempt to steal a few nightdresses hardly seems proportionate.
36. Sec. 29.
37. See Wasik & von Hirsch, Section 29 Revised: Previous Convictions in Sentencing [1994] CRIM. L. REV. 408.
38. Henham, Anglo-American Approaches to Cumulative Sentencing and the Implications for UK Sentencing Policy, supra note 6, at 267-68.
39. A. Ashworth, supra note 4, at 159-61.
40. This essentially relates to crimes of violence such as murder, manslaughter, rape, and armed robbery.
41. However, where exceptional circumstances exist (see, s 2(2)) the court need not impose a life sentence.
42. Sec. 3. The mandatory can be avoided where there are specific circumstances that would make it unjust in all the circumstances. For a discussion of these provisions and the arguments raised for and against see Henham, Anglo-American Approaches to Cumulative Sentencing and the Implications for UK Sentencing Policy, supra note 6.
43. For an overview of this, see Henham, Making Sense of the Crime Sentences Act 1997 61 MODERN L. REV. 223 (1998).
44. Thomas, The Crime (Sentences) Act 1997 [1998] CRIM. L. REV. 83.
45. For example, see M. Tonry, SENTENCING MATTERS 146 (1996).
46. In the United States, fourteen other states also utilize sentencing grids: see Frase, Sentencing Guidelines in Minnesota and Other American States: A Progress Report, in THE POLITICS OF SENTENCING REFORM 171 (ed. C Clarkson & R Morgan, 1995).
47. For a more detailed explanation of the Minnesota grid system, see Fox, Controlling Sentencers 20 A.N.Z. J. CRIMINOL. 218, at 223 (1987).
48. von Hirsch, Proportionality and Parsimony in American Sentencing Guidelines: The Minnesota and Oregon Standards, in THE POLITICS OF SENTENCING REFORM supra note 35, at 149.
49. By comparison with other jurisdictions, the Minnesota grid is relatively soft on prior convictions, although the Oregon grid is less severe on prior history: see von Hirsch, id.
50. See Frase, Sentencing Guidelines in Minnesota and Other American States: A Progress Report, in THE POLITICS OF SENTENCING REFORM, supra note 35, at 183.
51. von Hirsch, id. at 155-each offense is given a score; the more serious the offense, the higher the score.
52. M. Tonry, supra note 34, at 146.
53. See McMurry, Three-strikes Laws Providing More Show Than Go, TRIAL 12 (1997).
54. There are 28 different serious felonies (including burglary) and 17 violent felonies (including robbery of an inhabited house). For further discussion, see Owens, California's Three Strikes Laws: Desperate Times Require Desperate Measures-But Will it Work? 26 PACIFIC L. J. 881, at 891 (1995).
55. The bifurcation phrase is normally used in relation to offenders with priors for serious offenses. For example, see Bottoms, Reflections of the Renaissance of Dangerousness 16 HOWARD L. J. 70, at 74 (1977), but as we have seen often, even prior convictions for not so serious offenses are sufficient to invoke vastly different treatment.
56. For a discussion regarding the rule of law constraints, see J. Raz, THE AUTHORITY OF LAW, ch. 1 (1979).
57. J. Finnis, NATURAL LAW AND NATURAL RIGHTS (1980).
58. For example, see Henham, Anglo-American Approaches to Cumulative Sentencing and the Implications for UK Sentencing Policy, supra note 6, at 266.
59. In terms of exactly how many prior convictions it takes to exhaust the mitigation, A. von Hirsch frankly admits he has no answer: how may repetitions may occur before the discount is lost entirely? I have no ready answer, as this seems a matter of judgement even for everyday acts of censure in PAST OR FUTURE CRIMES 87 (1985).
60. Although this latter claim also has some popular appeal, it is more likely to be challenged because of its harsh consequences.
61. Henham, Cumulative Sentencing and Penal Policy 59 J. CRIM. L. 420, at 426 (1995).
62. Wasik & von Hirsch, supra note 29, at 410.
63. See also A. von Hirsch, supra note 45, at 85.
64. The lapse argument is also made by von Hirsch in Criminal Record Rides Again, 10 CRIM. JUST. ETHICS 55 (Summer/Fall 1991).
65. Desert and Previous Convictions, in PRINCIPLED SENTENCING 191 (ed. A. von Hirsch & A. Ashworth, 1998) 191.
66. A. Von Hirsch, supra note 45, at 85.
67. An insistence that tolerance for human frailty is indeed a settled moral prescription would run head on into the objection that this entails that we are born with a certain amount of credit points which we progressively lose. If this was so, there is no logical reason why tolerance should only kick in at the sentencing stage. Surely, it would apply to give each of us immunity from prosecution and guilt in the first place.
68. This follows from the claim that the purpose of the criminal law is to prevent people doing acts which cause, or seriously threaten, harm to others. There is no doubt that there is a distinction between offenses that violate fundamental human concerns and those that impinge less significantly on other human interests, but most conduct which is proscribed by the criminal law involves a minimum threshold of invasiveness upon the interests of others. Thus the criminal law in most western jurisdictions is becoming less concerned with regulating the self-regarding conduct of individuals or enforcing public standards of decency: see Bagaric, Sentencing: The Road to Nowhere, supra note 1, at 614-15.
69. In most jurisdictions there are obviously still exceptions to this, but in my view such conduct should not be prohibited by the criminal law.
70. See also J. kleinig, PUNISHMENT AND DESERT (1973) where he argues that punishing (to the full extent of one's desert) is not inconsistent with forgiveness: to forgive is to refuse to nurse resentment, to perpetuate the anger, to allow the matter to constitute a barrier in or to relationships, to take pleasure in the punishment. That is why it is quite appropriate for a person to ask, after he has been punished, 'Will you forgive me?' (at 92).
71. 61 CR App Rep 67, 91 (1975).
72. Here the offense was armed robbery. The Australian courts have adopted a similar position, see R. Fox & A. Freiberg, supra note 8, at 272-73.
73. Wasik & von Hirsch, supra note 29, at 415-16.
74. See also von Hirsch, Desert and Previous Convictions, supra note 48, at 196.
75. Criminal Record Rides Again, supra note 48, at 56.
76. Henham argues that an approach that regards the absence of mitigating factors as an aggravating factor that disappears totally where serious crimes are concerned is logically inconsistent: Cumulative Sentencing and Penal Policy, supra note 47.
77. See also Henham, supra note 44, at 268.
78. A. VON HIRSCH, supra note 45, at 85 (emphasis added).
79. See also von Hirsch, Desert and Previous Convictions, supra note 48, at 193-94.
80. Criminal Record Rides Again, supra note 48, at 55.
81. In Desert and Previous Convictions, 196, von Hirsch touches on this issue by stating that arguably, there might be a case for increasing the number of lapses in situations of reduced culpability. He uses the examples of repeat offenders who have limited intelligence and recidivists who are socially deprived, but indicates that greater tolerance in the latter case is more questionable.
82. see also von Hirsch, Criminal Record Rides Again, 56.
83. Offenses which are committed impulsively, suddenly or opportunistically are treated less seriously than those which are planned and premeditated: see A. ASHWORTH, supra note 4, at 134-35.
84. R. Fox & A. FREIBERG, supra note 8, 248-49.
85. Offenses committed under exceptional stress or emotional pressure are also regarded as being less serious: A. ASHWORTH, supra note 4, at 135.
86. Von Hirsch makes a similar point: punishing recidivists more severely does not amount to penalizing them twice for their past crimes if some feature of having being previously convicted affects the basis of [their] present punishment: Desert and Previous Convictions, supra note 48, at 191.
87. Criminal Record Rides Again, supra note 48, at 2. Once the principle of lapse is excluded, logically, there is only one other distinguishing feature between recidivists and first timers: their previous convictions evince a character defect.
88. A. VON HIRSCH, PAST OR FUTURE CRIMES, supra note 45, at 82, although later he suggests that the progressive loss of mitigation theory does not call into question the offender's entire career or character.
89. See id. at 83.
90. Sentencing Act (1991) Vic, s 5(2)(f).
91. Penalties and Sentences Act 1992 (Qld), s 9(2)(f).
92. Sentencing Act 1995 (NT), s 5(2)(e).
93. Sentencing Act (1991), s 6.
94. Penalties and Sentences Act 1992 (Qld), s 11 (general reputation is not expressly listed).
95. Sentencing Act 1995 (NT), s 6.
96. For a discussion of the case law see R. Fox & A. FREIBERG, supra note 8, 288-89.
97. Criminal Justice Act 1991 (UK), s 28(1).
98. A. ASHWORTH, supra note 4, at 135.
99. N. WALKER, supra note 3, at 138-39.
100. Wasik & von Hirsch, Section 29 Revised: Previous Convictions in Sentencing, supra note 29, at 410.
101. N. WALKER, supra note 3, at 127.
102. The moral irrelevance of intentions in discussed in detail in Bagaric, In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent and Utilitarianism and Rights 24 AUST. J. LEGAL PHIL. 95, at 118-20 (1999).
103. I thank John Kleinig for raising this point.
104. I expand on this argument in Bagaric, supra note 67, at 118-19.
105. See the discussion below on the over representation of the poor in prison.
106. Again, I wish to thank John Kleinig for this point.
107. A. VON HIRSCH, supra note 45, at 84.
108. von Hirsch & Wasik, supra note 29, at 410.
109. Von Hirsch, Desert and Previous Convictions, supra note 48, at 195.
110. See also A. VON HIRSCH, PAST OR FUTURE CRIMES, supra note 45, at 84.
111. von Hirsch & Wasik, supra note 29, 410.
112. Von Hirsch believes that punishment has a dual objective: reprobation and crime prevention. He relies on the deterrent rationale to try to justify hard treatment. However, he argues that the blaming function is paramount: 'the preventive function operates only within a censuring framework' (CENSURE AND SANCTIONS 14 [1993]), and that the two ideals 'cannot be collapsed into one another' (PAST OR FUTURE CRIMES, supra note 45, at 59).
113. Following his most recent attempt at justifying punishment (see CENSURE AND SANCTIONS) he has been interpreted as even further shying away from what he terms a bifurcated account of punishment (see Bottoms, in Five Puzzles in von Hirsch's Theory of Punishment; in FUNDAMENTALS OF SENTENCING THEORY (ed. A Ashworth and M Wasik, 1998) 53, 78-9). I have argued elsewhere that von Hirsch's theory of punishment is unsound.
114. For a critique of his theory see Bagaric, The Errors of Retributivism, MELB. U. L. REV. (forthcoming, Apr. 2000).
115. Though utilitarians would argue that this is not a sufficient condition.
116. Although as I discuss below, this is objective is misguided.
117. See Bagaric, The Errors of Retributivism, supra note 74, in which I argue that expectations, as opposed to hopes, are grounded in obligations which in term are derived from (voluntary or inadvertent) participation in goal-orientated practices or transactions. Obligations occur because they are necessary to facilitate the objectives of the relevant practice or transaction. Thus if punishment does not aim to reform, there can be no expectation that offenders should show greater restraint after being subjected to it.
118. A. VON HIRSCH, CENSURE AND SANCTIONS, supra note 74, at 10 (emphasis added).
119. Von Hirsch, Desert and Previous Convictions, supra note 48, at 196 (emphasis added).
120. Id. at 195.
121. Id. at 193 (emphasis added).
122. Id. at 195-96.
123. For example, see von Hirsch & Jareborg, Gauging Criminal Harm: A Living Standard Analysis, 11 OXFORD J. LEGAL STUD. 1, at 4 (1991).
124. Von Hirsch at one point (see PAST OR FUTURE CRIMES, supra note 45, ch. 7) argued that the fact of a prior conviction or convictions increases the culpability of the current offense (on the basis that the offender can no longer plead ignorance as a partial excuse), but he has subsequently resiled from this view.
125. see his Desert and Previous Convictions, supra note 48, at 192-93.
126. Criminal Record Rides Again, supra note 48, at 55.
127. The principle would need to be so extensive to include all of the 300 or so factors that the courts have recognized as being relevant sentencing considerations: J. SHAPLAND, BETWEEN CONVICTION AND SENTENCE 55 (1981) identified 229 factors while R. DOUGLAS, GUILTY, YOUR WORSHIP (1980), in a study of Victorian Magistrates' Courts, identified 292 relevant sentencing factors. The results of such studies were noted in Pavlic 5 Tas. R. 186, at 202 (1995).
128. It was for this reason that von Hirsch and Jareborg, when elaborating on the matters that are relevant to gauging the seriousness of the offense, declined to consider aggravating and mitigating circumstances: see von Hirsch & Jareborg, supra note 83, at 4.
129. This same conclusion is shared by G. FLETCHER, RETHINKING CRIMINAL LAW 460-66 (1978).
130. R. SINGER, JUST DESERTS: SENTENCING BASED ON EQUALITY AND DESERT, ch. 5 (1979).
131. For example, see A. ASHWORTH, SENTENCING AND PENAL POLICY 217-22(1983).
132. Factors such as remorse and co-operation with authorities are closely related to, and serve to counteract the need for, specific deterrence. Offenders who are genuinely remorseful about their conduct and co-operate with authorities in an attempt to redeem themselves evince regret for their actions and are felt to be less prone to act similarly again; hence the need for specific deterrence is lessened. Remorse is declared to be relevant by the Sentencing Act 1991 (Vic), s 5(2)(e) (a plea of guilty is evidence of remorse) and the Crimes Act 1914 (C'th), ss 16A (2) (f) & (h).
133. For further, see A. ASHWORTH, supra note 4, 139-42.
134. R. Fox & A. FREIBERG, supra note 8, 305-06.
135. Cited in R. Fox & A. FREIBERG, supra note 8, 271. This passage is also approved in Andrew (Unreported, Supreme Court of Tasmania, 2 April 1998).
136. 2 Cr App Rep (S) 312 (1980).
137. See also A. ASHWORTH, supra note 4, at 153-54.
138. Monahan, The Prediction of Violent Behaviour: Toward a Second Generation of Theory and Policy, 141 AM. J. PSYCHIATRY 10 (1984).
139. Another study revealed a false positive rate of about 65 percent: see Kozol, Dangerousness in Society and Law 13 TOLEDO L. REV. 241 (1982).
140. For an overview of the literature in this area, see Bagaric, Suspended Sentences and Preventive Sentences: Illusory Evils and Disproportionate Punishments 24 U.N.S.W. L. REV. 535 (1999).
141. P. Greenwood claimed that it was possible to identify high risk robbers and burglars by identifying seven supposed risk factors (similar prior convictions, incarceration for over a year in the previous two years; convictions at a young age; time served in a juvenile facility; use of drugs in the past two years; drug use as a juvenile; and employment for less than a year in the last two years) and hence significantly reduce the number of such offenses by increasing the prison terms for the highrisk offenders: P. GREENWOOD, SELECTIVE INCAPACITATION: REPORT PREPARED FOR THE NATIONAL INSTITUTE OF JUSTICE (1982).
142. However, it seems that the technique used was flawed. A reanalysis of the original data resulted in less promising results: see A. BLUMSTEIN, J. COHEN, & C. VISHER, CRIMINAL CAREERS AND CAREER CRIMINALS (1986).
143. von Hirsch, Selective Incapacitation: Some Doubts, in PRINCIPLED SENTENCING, supra note 48, 121, at 122-23.
144. On the basis of the definition in the Criminal Justice Act 1985 (NZ), s 2. This essentially relates to crimes of serious violence, such as manslaughter, wounding, and robbery.
145. See Brown, Serious Violence and Dilemmas of Sentencing: A Comparison of Three Incapacitation Policies [1998] CRIM. L. REV. 710.
146. Id. at 714.
147. Id. at 715.
148. Including those which go beyond simply looking at prior criminality to considering such things as employment history and so on.
149. F. ZIMRING & G. HAWKINS, INCAPACITATION 86 (1995).
150. Cohen, The Incapacitative Effect of Imprisonment: A Critical Review of the Literature in DETERRENCE AND INCAPACITATION: ESTIMATING THE EFFECTS OF CRIMINAL SANCTIONS ON CRIME RATES 209 (ed. A. Blumstein, J. Cohen, & J. Nagin, 1978).
151. For a discussion of these laws, see Frase, supra note 35.
152. There is a mandatory prison term of 25 years to life for a third felony.
153. Stolzenberg & D'Alessio, supra note 2, at 467.
154. Philpotts & Lancucki, Previous Convictions, Sentence and Reconvictions, Home Office Research Study, No. 53, 16 (1979).
155. See A. ASHWORTH, supra note 4, at 154, 166. Other factors (apart from a previous criminal history) which have been shown to lead to a slightly higher rate of recidivism are unemployment and drug history.
156. see von Hirsch, Selective Incapacitation: Some Doubts, in PRINCIPLED SENTENCING, supra note 48, at 121.
157. Australian Institute of Criminology, Prison Sentences in Australia, 20 TRENDS & Iss. CRIME & CRIM. JUST. (Sept. 1989).
158. It was essentially for this reason that the Australian Law Reform Commission, in Sentencing, Report No. 44, at xxviii, 18 (1987) rejected the use of incapacitation (and general deterrence) as a proper objective of sentencing. About a decade later, however, the New South Wales Law Reform Commission in its report: Sentencing, Report No. 79, at 332 (1996), considered incapacitation to be an appropriate rationale for sentencing.
159. Bagaric, Instant Justice? The Desirability of Expanding the Range of Criminal Offences Dealt With on the Spot, 24 MONASH U. L. REV. 231, at 270 (1998).
160. However, as is discussed above, this modeling may have overestimated the effects of such laws to prevent crimes.
161. Cited in Hogg, Mandatory Sentencing Laws and the Symbolic Politics of Law and Order, 22 U.N.S.W. L. REV. 262, at 263 (1999).
162. See also Nagel, General Deterrence: A Review of the Empirical Evidence, in DETERRENCE AND INCAPACITATION, supra note 95, at 96 where he adverts to the difficulty of distinguishing between rehabilitation and specific deterrence.
163. See Farrington, Age and Crime in 7 CRIME AND JUSTICE: AN ANNUAL REVIEW OF RESEARCH 189 (ed. M. Tonry & N. Morris, 1986).
164. Nagin, Farrington & Moffitt, Life Course Trajectories of Different Type of Offenders, 33 CRIMINOL. 111 (1995).
165. The Panel on Research on Deterrent and Incapacitative Effects, Incapacitation, in DETERRENCE AND INCAPACITATION, supra note 95, at 66.
166. F. ZIMRING & G. HAWKINS, DETERRENCE: THE LEGAL THREAT IN CRIME CONTROL 14 (1973).
167. For a discussion regarding the difficulties in evaluating data relating to deterrence, see Wilson, Penalties and Opportunities, in A READER ON PUNISHMENT 176 (ed. R. Duff & D. Garland, 1984) 176.
168. Beyleveld, Deterrence Research as a Basis For Deterrence Policies 18 HOWARD J. CRIM. JUST. 135 (1979).
169. For example, see N. WALKER, WHY PUNISH? 16 (1991).
170. The Report of the Panel of the National Research Council, in DETERRENCE AND INCAPACITATION, supra note 100, at 39.
171. Id. at 7.
172. Deterrence: The Legal Threat in Crime Control, supra note 109, at 29.
173. More recently, see Nagin, Criminal Deterrence Research at the Outset of the Twenty-First Century, 23 CRIME & JUST. 1 (1998).
174. A. VON HIRSCH, A. BOTTOMS, ET AL., CRIMINAL DETERRENCE AND SENTENCE SEVERITY (1999).
175. Bagaric, Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals 24 CRIM. L. J. 21 (2000), where similar conclusions are reached.
176. Broadhurst & Loh, Selective Incapacitation and the Phantom of Deterrence, in REPEAT JUVENILE OFFENDERS: THE FAILURE OF SELECTIVE INCAPACITATION IN WESTERN AUSTRALIA 55 (ed. R. Harding, 2nd ed. 1995). The number of actual police pursuits was not an accurate indicator because following the Act police pursuit practices had changed, which resulted in many pursuits being called off or not commencing in the first place.
177. Stolzenberg & D'Alessio, Three Strikes and You're Out: The Impact of California's New Mandatory Sentencing Law on Serious Crime Rates, supra note 2.
178. See also National Academy of Sciences, PANEL ON UNDERSTANDING AND CONTROL OF VIOLENT BEHAVIOR, 6-7, 293-4 (ed. A. Reiss & J. Roth 1993).
179. Nagin, Criminal Deterrence Research at the Outset of the Twenty-First Century, supra note 120.
180. Ellison, US Study Ties Crime Fall to Abortions, The Age, August 11, 1999, at 13.
181. The discussion regarding the events of the strike come from K. MILTE & T. WEBER, POLICE IN AUSTRALIA 287-92 (1977).
182. Ashworth, Deterrence, in PRINCIPLED SENTENCING, supra note 48, at 51 refers to the Liverpool strike and the Danish experience is discussed in N. WALKER, SENTENCING 85 (1985).
183. See Mathiesen, General Prevention as Communication, in A READER ON PUNISHMENT, supra note 116, at 231.
184. The length of prison is, however, irrelevant. Wolpin, An Economic Analysis of Crime and Punishment in England and Wales 1894-1967, J. POL. ECON. 815 (1978).
185. For a comprehensive discussion regarding the use of on the spot fines, see R. Fox, CRIMINAL JUSTICE ON THE SPOT (1995).
186. In some United States jurisdictions, on-the-spot infractions are treated as civil infractions, id. at 18-20.
187. For example, the United Kingdom and Victoria have a penalty point system for traffic offenders; when they accumulate twelve points a license cancellation may follow: id.
188. A. Ashworth, supra note 4, at 154.
189. Bagaric, supra note 108, at 231.
190. Although this is not necessarily the case: id.
191. Indeed in Western Australia, it is legislatively prescribed that prior convictions are not aggravating: Sentencing Act (WA), s 7(2)(b).
192. For example, see S. Box, RECESSION, CRIME AND PUNISHMENT 96 (1987), who, after reviewing sixteen major studies of income inequality and crime concluded that income inequality is strongly related to crime.
193. Carlen, Crime, Inequality and Sentencing in A READER ON PUNISHMENT, supra note 116, at 309.
194. Prison numbers illustrate this quite graphically. In the United Kingdom, the proportion of black males in prison is around six times higher than in the general population.
195. A. Ashworth, supra note 4, at 233. For further, see discussion below.
196. For example, see Burnett, Recidivism and Imprisonment in Home Office Research Bulletin, No. 36, Special Edition: Prisons and Prisoners (1994).
197. A similar observation is made by M. TONRY, supra note 34, at 17-18.
198. A. VON HIRSCH, supra note 45, at 58. For other reasons why von Hirsch abandoned the theory, see 57-60.
199. Murphy, Marxism and Retribution 2 PHIL. & PUB. AFF. 217 (1973).
200. H. L. A. HART, PUNISHMENT AND RESPONSIBILITY 51 (1968).
201. R. A. DUFF, TRIALS AND PUNISHMENTS 294 (1986).
202. Duff, Punishment, Citizenship & Responsibility in PUNISHMENT, EXCUSES AND MORAL DEVELOPMENT 23, note 17 (ed. H. Tam, 1997).
203. The argument that social deprivation should not be a defense, because there are many people from such backgrounds who lead law-abiding lives (hence there is supposedly no necessary link between poverty and crime), is as barren as the view that the fact that there are many people who do not experience health problems from smoking shows that there is no necessary link between smoking and bad health.
204. For example, in Australia coming from a disadvantaged background is not itself a mitigatory factor: Neal (1982) 149 C.L.R. 305, 326; E (A Child) (1993) 66 A. Crim. R. 1.
205. For an argument in favor of a defense of economic duress, see Hudson, Mitigation for Socially Deprived Offenders, in PRINCIPLED SENTENCING, supra note 48, at 205.
206. Von Hirsch, The Politics of Just Deserts, CANADIAN J. CRIMINOL. 397, at 409 (1990).
207. Von Hirsch accepts that the extent to which social deprivation diminishes criminal responsibility is a difficult matter, but ultimately finds it difficult to believe that social deprivation renders all law breakers beyond fault. In CENSURE AND SANCTIONS, supra note 74, at 108, he suggests that a penalty discount may be appropriate in cases in which an offender from a deprived background can establish particular reasons why the deprivation made it more difficult to comply with the law.
208. Von Hirsch, The Politics of Just Deserts, supra note 143.
209. This is even higher than the normal gross overrepresentation of African Americans in United States prisons. In 1991 they comprised 49 percent of the country's prison population, and only 6 percent of the general population: M. MAUER, AMERICANS BEHIND BARS: A COMPARISON OF INTERNATIONAL RATES OF INCARCERATION (1991).
210. McMurry, Three-strikes Laws Providing More Show Than Go, supra note 40, at 12-13.
211. However, the number of people sentenced under threestrikes laws is significantly fewer in Washington (79) than in California (15,000-for second or third strike offenses).
212. McMurry, supra note 40, at 13.
213. It has also been forecast that the introduction of cumulative sentencing regimes in the United Kingdom, discussed earlier, will increase the already disproportionate representation of black and Asian offenders in English jails: Henham, supra note 44, at 278, where he draws on prison population data from R. HOOD, RACE AND SENTENCING: A STUDY IN THE CROWN COURT (1992)
214. See also Jones, The Failure of the Get Tough Crime Policy 20 U. DAYTONA L. REV. 803 (1995).
215. Taifa, Three Strikes-And-You're-Out-Mandatory Life Imprisonment for Third Time Felons 20 U. DAYTONA L. REV. 717 (1995).
216. A. ASHWORTH, supra note 4, at 181.