NCJ Number
224306
Journal
Howard Journal of Criminal Justice Volume: 47 Issue: 4 Dated: September 2008 Pages: 400-410
Date Published
September 2008
Length
11 pages
Annotation
This article examines the role of desert (modern desert theory where punishment imposed is proportionate to seriousness of the offense) in the sentencing of adult offenders and whether there is any justification to the claim that the importance of retributivism has been reduced significantly over the last decade.
Abstract
Punishment has been justified on a number of different grounds. Most justifications promise a future benefit: the offender will be rehabilitated; the offender will be deterred from engaging in similar conduct; or society will be protected by the incarceration of an individual who is potentially dangerous. An alternative rationale promises no future benefit. Retributivism rests on the intuitive assumption that offenders ‘deserve’ punishment. Modern desert theory stipulates that any punishment imposed should be a proportionate response to the seriousness of the offense in question. The accepted view has been that the Criminal Justice Act 2003 reduced the importance of proportionality in sentencing with sentencers required to also consider a number of other sentencing justifications. This article questions the accepted view that the role of retributivism in the sentencing of adult offenders has diminished considerably over the past 15 years. It is not suggested that desert is as central to sentencing decisionmaking as it was under the Criminal Justice Act 1991; nor does it seek to challenge the broadly-held consensus that there has been a shift towards a risk-based penology. The argument is more modest. By reconsidering the framework of the Criminal Justice Act 2003, it is suggested that desert has retained a residual importance that can easily be underestimated. There has undoubtedly been a shift; the question is how profound the shift has been. The key difference to sentencing practice since the 1991 Act is arguably the creation of the Sentencing Guidelines Council, the impact of which has been not only on sentencing practice but on the aims of sentencing. By focusing on issues of harm and culpability, the Council has ensured that desert has retained a central role after the Act 2003. References