Retributivism and multiple offending

Res Publica

Volumn 11, Issue 3, 2005, Pages 213-233

  Ryberg, Jesper ^a  

^a ROSKILDE UNIVERSITY   (Denmark)

Author keywords

Mercy; Multiple offending; Principle of parsimony; Punishment; Retributivism

Indexed keywords

EID: 29144511977     PISSN: 13564765     EISSN: None     Source Type: Journal    
DOI: 10.1007/s11158-005-3522-8     Document Type: Article

References (33)

1. See P. H. Robinson and J. M. Darley, Community View and the Criminal Law (United States of America: Westview Press, 1995), pp. 189-196.
2. However, see also K. Pease et al., 'The Development of a Scale of Offence Seriousness', International Journal of Criminology and Penology 5 (1977), 17-29.
3. A. Ashworth, Sentencing and Criminal Justice (London: Butterworths, 1995), p. 207.
4. See, for instance, A. Von Hirsch 'The Future of Proportionate Sentence' in eds T. G. Blomberg and S. Cohen, Punishment and Social Control (New York: Aldine De Gryter, 1995), p. 125.
5. This constitutes the official justification in the German context. See N. Jareborg, 'Why Bulk Discounts in Sentencing?', in eds A. Ashworth and M. Wasik, Fundamentals of Sentencing Theory (Oxford: Clarendon Press, 1998), p. 136.
6. See N. Jareborg, 'Why Bulk Discounts in Sentencing?', Fundamentals of Sentencing Theory ibid., 1998, p. 136.
7. This argument is suggested but rightly rejected. A. Bottoms, 'Puzzles in von Hirsch's Theory of Punishment' in eds A. Ashworth and M. Wasik, Fundamentals of Sentencing Theory, op. cit, p. 65, n. 40.
8. See, for instance, K. Adams, 'Adjusting to Prison Life', Crime and Justice 16 (1992), 275-359.
9. In practice, the view that each new crime should result in extra punishment is not compatible with the existence of a punishment ceiling (it is simply not practically possible to punish in such a way that extra punishments asymptotically approach an upper limit that is never hit). Thus, at some point extra punishments will no longer count positively.
10. Jareborg, 'Why Bulk Discounts in Sentencing?', p. 139.
11. See, for instance, N. Morris and M. Tonry, Between Prison and Probation (New York: Oxford University Press, 1990).
12. Perhaps most notably Andrew von Hirsch and Antony Duff. See e.g. von Hirsch, Censure and Sanctions (Oxford: Clarendon Press, 1996);
13. Duff, Punishment, Communication and Community (Oxford: Oxford University Press, 2003).
14. It should be mentioned that this is not a view which expressionists would usually be willing to accept. It would undermine the standard expressionist argument in favour of proportionality in punishing.
15. Ashworth, Sentencing and Criminal Justice, p. 210.
16. Ashworth, Sentencing and Criminal Justice, Ibid., p. 210.
17. Ashworth, Sentencing and Criminal Justice, Ibid., p. 214.
18. Jareborg, 'Why Bulk Discounts in Sentencing?', p. 138.
19. J. S. Mill, 'Utilitarianism', in ed. J. Gray, John Stuart Mill. On Liberty and Other Essays (Oxford: Oxford University Press, 1991), p. 138.
20. Let us ex hypothesi assume that I do not lose my interest in values no matter how many I eat.
21. Mill himself believes this to be the case. See, for instance, J. Ryberg, 'Higher and Lower Pleasures - Doubts on Justification,' Ethical Theory and Moral Practice 5 (2002): pp. 426-428.
22. The argument also presupposes that it is acceptable to jump from intra-personal to inter-personal comparison, because obviously the victims of multiple offending need not be one and the same person.
23. However, one would still be left with the question of how the culpability of the offender should count in the typing of crimes.
24. Bottoms, 'Puzzles in von Hirsch's theory of Punishment', p. 66.
25. Bottoms, 'Puzzles in von Hirsch's theory of Punishment' Ibid. p. 65.
26. J. Hampton, 'The Retributive Idea', in eds J. G. Murphy and J. Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988), p. 158.
27. Bottoms, 'Puzzles in von Hirsch's Theory of Punishment', p. 68.
28. As mentioned there are other theories of mercy than the one Bottoms bases his argument upon. For instance, it has been suggested that mercy should be exercised when there are sufficiently strong utilitarian reasons to override justice (see A. Smart, 'Mercy', Philosophy 43 (1968), 345-359). According to another theory mercy should be exercised in cases where offenders repent their misdeeds. However, it is pretty clear that these theories cannot provide a more general explanation as to why there should be a bulk discount in multiple-offence cases: there may well be cases of multiple offending which do not involve sufficiently strong countervailing reasons to override justice and there may be cases where a multiple offender does not repent his misdeed.
29. Let me add one further comment: As indicated, Bottoms' theory is not basically a theory about multiple offending but about how severely it is legitimate to punish a criminal. If mercy should be shown in cases where the deserved punishment is too harsh, this will be the case also if the misdeed consists in a single serious crime. At the very least we have not been provided with any reason as to why a punishment for a single misdeed, if it is too severe relative to the perpetrator's future life prospect, should not contain the same reduction as the punishment of the multiple offender. However, since the crucial point for the retributivist is that justice happens, is it then reasonable to hold that mercy simple sets aside what is just desert? Is it convincing to hold that justice can simply be overruled just because people feel compasion and pity? It strikes me that such a manoeuvre would, from the retributivists' own perspective, require justification. But no such justification is provided by Bottoms.
30. Bottoms, 'Puzzles in von Hirsch's Theory of Punishment', p. 67.
31. It is sometimes the case that, when people hold that certain actions are justified on the ground of certain feelings, what they have in mind is not the actual possession of these feelings but rather that the action is justified when such feelings would be appropriate. In other words, one answer might be that it is not the actual feelings that matter but rather that there are cases where one ought to feel pity and compassion for others. This answer might make it possible to retain the idea of a rational approach to mercy; however, only at the cost of raising another question, namely, when is a punishment of such severity that one ought to feel pity and compassion for the wrongdoer? Unless this normative question can be answered there is not much to the theory of mercy. But no such answer is even tentatively provided by Bottoms and it is certainly hard to imagine what form a plausible answer would take. Thus, this way of getting around the problem does no have much to offer.
32. In fairness to Bottoms, it should be mentioned that he refers to Harrison's work on rationality and mercy where it is underlined, for instance, that judgements should be informed by, and sensitive to, reason. However, I still fail to see how such considerations could manage to bridge the gap between intra- and inter-personal differences in emotions like pity and compassion, and the demand for rationality as defined by Bottoms. See R. Harrison, 'The Equality of Mercy', in eds H. Gross and R. Harrison, Jurisprudence: Cambridge Essays (Cambridge: Cambridge University Press, 1992).
33. M. Davis, To Make Punishment Fit the Crime. (Boulder: Westview Press, 1992), p. 86