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Retributivism and the Use of Imprisonment as the Ultimate Back-up Sanction

Published online by Cambridge University Press:  20 August 2019

William Bülow
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Abstract

Imprisonment is often said to be the ultimate back-up sanction for offenders who do not abide by their non-custodial sentence. From a standard consequentialist perspective this is morally justified, if it is a cost-effective means to crime prevention. In contrast, the use of imprisonment as a back-up is much harder to justify from retributivist perspectives, with their emphasis on just desert or deserved censure. The crux is this: if the reason for a non-custodial sentence is that a prison sentence risks being a disproportionate or inappropriate sanction, retributivists need to explain how a prison term can be warranted as the backup sanction for those who breach the requirements of their non-custodial sentence, even though their original crime wasn’t serious enough to warrant imprisonment in the first place. The aim in this paper is to critically assess the extent to which retributivists can justify the use of imprisonment as the ultimate back-up sanction. In doing so, I first examine two broad strategies that are discussed in the literature, and which retributivists could employ in order to respond to this problem. The first strategy stresses how desert has only a limited role in sentencing such that it demarcates a range of deserved punishment. On this view, associated with limiting retributivism, one could initially opt for a less harsh yet deserved punishment, leaving room for the imposition of back-up sanctions when needed. The second strategy focuses on how the act of breach is a reprehensible act that can allow for a penalty increase, and thereby lead to imprisonment. Although it is argued that both strategies fail, the paper proposes an alternative solution to this problem.

Keywords

Back-up sanctionsImprisonmentLimiting RetributivismNormative Theories of SentencingRetributivism
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 32 , Issue 2 , August 2019 , pp. 285 - 303
Copyright
© Canadian Journal of Law & Jurisprudence 2019 

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Footnotes

I wish to thank Göran Duus-Otterström, Bob Hartman, Richard Lippke, and Andrei Poama for their constructive and encouraging comments on earlier drafts of this paper. A special thanks also to an anonymous referee for the Canadian Journal of Law & Jurisprudence for helpful and constructive comments.

References

1 See, e.g., Alasdair Cochrane, “Prison on Appeal: The Idea of Communicative Incarceration” (2017) 11:2 Crim Law & Phil 295; Duff, RA, Punishment, Communication, and Community (Oxford University Press, 2001Google Scholar); Hughes, “Imprisonment and the Right to Freedom of Movement” in Surprenant, Chris W, ed, Rethinking Punishment in the Era of Mass Incarceration (Routledge, 2017) 89CrossRefGoogle Scholar; Richard Lippke, “Retribution and Incarceration” (2003) 17:1 Pub Affairs Quarterly 29; Lippke, Richard L, Rethinking Imprisonment (Oxford University Press, 2007CrossRefGoogle Scholar); Ramsay, Peter, “A Democratic Theory of Imprisonment” in Dzur, Albert W, Loader, Ian & Sparks, Richard, eds, Democratic Theory and Mass Incarceration (Oxford University Press, 2016) 84CrossRefGoogle Scholar.

2 See, e.g., William Bülow, “Treating Inmates as Moral Agents: A Defense of the Right to Privacy in Prison” (2014) 33:1 Criminal Justice Ethics 1; William Bülow, “The Harms Beyond Imprisonment: Do We Have Special Moral Obligations towards the Families and Children of Prisoners?” (2014) 17:4 Ethical Theory and Moral Practice 775; Antony R Duff & Sandra E Marshall, “Civic Punishment” in Dzur, Loader & Sparks, supra note 1, 33; Zachary Hoskins, “Punishment, Contempt, and the Prospect of Moral Reform” (2013) 32:1 Criminal Justice Ethics 1; Kleinig, John, “Professionalizing Incarceration” in Kleinig, John & Smith, Margaret Leland, eds, Discretion, Community, and Correctional Ethics (Rowman & Littlefield, 2005) 39Google Scholar; Richard Lippke, “Against Supermax” (2004) 21:2 J Applied Philosophy 109; Lippke, Rethinking Imprisonment, supra note 1; Bill Wringe, “Are There Expressive Constraints on Incarceration?” in Surprenant, supra note 1, 105.

3 See, e.g., Duff, Punishment, Communication, and Community, supra note 1; von Hirsch, Andreas, Deserved Criminal Sentences (Hart, 2017Google Scholar). The exact requirements of non-custodial sentences can of course vary. In the case of probation programs, they can require the offender to regularly report to one’s probation officer and submit oneself to supervision. It could also include regularly attending a probation center, undergoing treatment programs, or restrain from certain activities related to one’s offense, such as when a football hooligan is banned from attending matches (see, e.g., Duff, Punishment, Communication, and Community, supra note 1 at 101-02). In the case of community service, the sentence also includes unpaid work.

4 For good and important exceptions see Duff, Punishment, Communication, and Community, supra note 1 at 152; Richard S Frase, “Punishment Purposes” (2005) 58:1 Stan L Rev 67; Frase, Richard S, Just Sentencing: Principles and Procedures for a Workable System (Oxford University Press, 2012CrossRefGoogle Scholar); von Hirsch, Andreas & Ashworth, Andrew, Proportionate Sentencing: Exploring the Principles (Oxford University Press, 2005) at 159-61CrossRefGoogle Scholar; von Hirsch, supra note 3 at 93-95.

5 Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation (Clarendon Press, 1996Google Scholar).

6 For a criticism of this sort, see Duff, Punishment, Communication, and Community, supra note 1 at 7-8; Boonin, David, The Problem of Punishment (Cambridge University Press, 2008) at 39-58CrossRefGoogle Scholar; Golash, Deirdre, The Case Against Punishment: Retribution, Crime Prevention, and the Law (New York University Press, 2005) at 43-47Google Scholar.

7 See, e.g., Ryberg, Jesper, The Ethics of Proportionate Punishment: A Critical Investigation (Kluwer Academic, 2004) at 13-14Google Scholar; Alec Walen Retributive Justice (Stanford Encyclopedia of Philosophy, 2016).

8 See, e.g., Duff, Punishment, Communication, and Community, supra note 1 at 133; Walen, “Retributive Justice”, supra note 7.

9 See, e.g., Lippke, Rethinking Imprisonment, supra note 1 at 25-26; Nozick, Robert, Philosophical Explanations (Harvard University Press, 1981) at 363Google Scholar.

10 See, e.g., Lippke, Rethinking Imprisonment, supra note 1 at 25-26.

11 Ibid at 66-70; von Hirsch, Deserved Criminal Sentences, supra note 3 at 87.

12 See, e.g., Duff, Punishment, Communication, and Community, supra note 1 at 150-51; Duff, Antony R, “Punishment, Communication and Community” in Matravers, Derek & Pike, Jon, eds, Debates in Contemporary Political Philosophy (Routledge, 2003) 387Google Scholar at 397-98.

13 Duff, Punishment, Communication, and Community, supra note 1 at 152. See also Duff & Marshall, supra note 2 at 49.

14 See, e.g., Frase, Just Sentencing, supra note 4 at 13.

15 See, e.g., Richard Frase, “Sentencing Principles in Theory and Practice” (1997) 22:1 Crime and Justice 363; Frase, “Punishment Purposes”, supra note 4; Frase, Just Sentencing, supra note 4.

16 Frase, “Punishment Purposes”, supra note 4 at 76.

17 Ibid at 76-77.

18 Ibid at 77.

19 Ibid at 77-78.

20 Ibid at 77-78; Frase, Just Sentencing, supra note 4.

21 For discussion on the negative effects of short prison sentences, see Michael Tonry, “Less Imprisonment is No Doubt a Good Thing, More Policing is Not” (2011) 10:1 Criminology & Pub Policy 137.

22 See, e.g., Andrew Ashworth, “What if imprisonment was abolished for property offences?” (2013) The Howard League for Penal Reform; Lippke, Rethinking Imprisonment, supra note 1 at 65-70; von Hirsch, Deserved Criminal Sentences, supra note 3 at 87.

23 Lippke, Rethinking Imprisonment, supra note 1 at 66. A similar view is endorsed by von Hirsch, who holds that imprisonment is a severe punishment because “the interests in freedom of movement and privacy which it takes away are ordinarily so vital to a decent existence” (von Hirsch, Deserved Criminal Sentences, supra note 3 at 69).

24 Lippke, Rethinking Imprisonment, supra note 1 at 65.

25 Ibid. See also Ashworth, supra note 22.

26 Lippke, Rethinking Imprisonment, supra note 1 at 65. One may of course also discuss whether drug use should be punishable at all, or whether it should be decriminalized. For a discussion on this topic see Douglas Husak, “Four Points about Drug Decriminalization” (2003) 22:1 Criminal Justice Ethics 21.

27 von Hirsch & Ashworth, supra note 4 at 156; von Hirsch, Deserved Criminal Sentences, supra note 3 at 87.

28 von Hirsch, supra note 3 at 21.

29 Ibid at 38.

30 As I discuss below, von Hirsch’s account allows for crime preventive considerations to have a say when deciding between two possible sanctions of equal severity. For example, an intensive probation supervision can be favored instead of a conditional sentence with a financial penalty, if the offender is at great risk of reoffending and under the condition that these two sanctions are equally severe. See, e.g., ibid at 90.

31 Ibid at 93.

32 See, e.g., von Hirsch & Ashworth, supra note 4.

33 von Hirsch, supra note 3 at 94.

34 Ibid at 94; von Hirsch & Ashworth, supra note 4 at 160. See also Lippke, Rethinking Imprisonment, supra note 1 at 65.

35 von Hirsch, supra note 3 at 94.

36 Ibid at 95; von Hirsch & Ashworth, supra note 4 at 160-61.

37 Frase, Just Sentencing, supra note 4 at 104-05.

38 Ibid at 103-04.

39 See, e.g., Tonry, supra note 21.

40 See, e.g., von Hirsch & Ashworth, supra note 4 at 158; von Hirsch, supra note 3 at 90.

41 Frase, Just Sentencing, supra note 4 at 104.

42 Ibid.

43 I am thankful to Richard Lippke for raising this point.

44 Christopher New, “Time and Punishment” (1992) 52:1 Analysis 35.

45 Richard Lippke, “No Easy Way Out: Dangerous Offenders and Preventive Detention” (2008) 27:4 Law & Phil 383 at 389.

46 See, e.g., von Hirsch & Ashworth, supra note 4 at 161; von Hirsch, supra note 3 at 93-95.

47 Duff & Marshall, supra note 2 at 49.

48 Some commentators on Duff’s view have argued that it is not a form of retributivism, but rather a hybrid theory of punishment, see, e.g., Brooks, Thom, Punishment (Routledge, 2012CrossRefGoogle Scholar). I won’t go into debate on this issue here, even though I do find the communicative theory of punishment to be a form of retributivism, given that the justifying aim of punishment is to communicate the censure the offender deserves.

49 Duff, Punishment, Communication, and Community, supra note 1.

50 See, e.g., ibid at 113.

51 Ibid at 106.

52 Ibid at 106-12.

53 Ibid at 150 [emphasis in the original]. At certain points Duff makes what appears to be an even stronger claim, stating that imprisonment should be reserved for “the most serious community-destroying crimes.” See Duff, “Punishment, communication and community”, supra note 12 at 398.

54 Duff, Punishment, Communication, and Community, supra note 1 at 150.

55 Ibid at 151.

56 See, e.g., Ambrose YK Lee, “Defending a Communicative Theory of Punishment: The Relationship between Hard Treatment and Amends” (2017) 37:1 Oxford J Leg Stud 217 at 228-29.

57 Duff, Punishment, Communication, and Community, supra note 1 at 152 [emphasis in original].

58 Ibid at 152 [emphasis in original].

59 Ibid at 152.

60 William Bülow, “Deserved Delayed Release: The Communicative Theory of Punishment and Indeterminate Prison Sentences” (2018) 37:2 Criminal Justice Ethics 164 at 172.

61 See, e.g., Duff, Punishment, Communication, and Community, supra note 1 at 101-02; Antony Duff, “Penance, Punishment and the Limits of Community” (2003) 5:3 Punishment and Society 295 at 300-01.

62 Note, however, that unlike von Hirsch’s the equivalent punishment in Duff’s view probably won’t include imprisonment.

63 For a discussion of how Duff’s view builds on the idea that wrongdoers acquire duties and obligations through their wrongdoing, see Tadros, Victor “Obligations and Outcomes” in Cruft, Rowan, Kramer, Matthew H & Reiff, Mark R, eds, Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (Oxford University Press, 2011) 173CrossRefGoogle Scholar.

64 Cochrane, “Prison on Appeal”, supra note 1 at 301-03.

65 Bülow, “Deserved Delayed Release”, supra note 60 at 172.

66 Duff, “Punishment, Communication, and Community”, supra note 12 at 398.

67 Duff, Punishment, Communication, and Community, supra note 1 at 152.

68 Ibid at 139.

69 See, e.g., ibid at 139-41; Göran Duus-Otterström, “Why Retributivists Should Endorse Leniency in Punishment” (2013) 32:4 Law & Phil 459.

70 I take it that this is true also of Frase and von Hirsch.

71 Duff, Punishment, Communication, and Community, supra note 1 at 140.

72 See, e.g., Moore, Michael S, Placing Blame: A Theory of the Criminal Law (Oxford University Press, 1997Google Scholar); Walen, supra note 7.

73 See, e.g., Duus-Otterström, supra note 69.