The "desert" model for sentencing: its influence, prospects, and alternatives

Social Research, Summer, 2007 by Andrew von Hirsch

But it is important to bear in mind that, however influential the desert rationale has been among academic commentators on sentencing, it has been implemented only in certain jurisdictions. Many European states continue to operate with traditional discretionary sentencing schemes; in the United States, most states still have discretionary schemes, but these are often modified through imposition of statutory mandatory minimum sentences for various crime categories (Tonry, 1996, chap.5). Some of the latter measures have become notorious--for example, California's "three strikes" law, which imposes near-lifetime prison terms for a third conviction of any of a variety of common crimes (Zimring, Hawkins, and Kamin, 2001). Mandatory minimum sentences do not derive from a desert model--indeed, are wholly inconsistent with such a rationale. When mandatory minimums are set high, they will tend to be disproportionate to crime seriousness; selecting certain offenses for minimum levels of punishment will also cause them to be punished more harshly than other crimes of comparable seriousness. The mandatory-minimum device also inappropriately restricts a court's ability to reduce sentences to reflect circumstances of diminished culpability (von Hirsch and Ashworth, 2005: 76-82).

THE ATTRACTIONS OF THE PROPORTIONATE SENTENCE

Fashions in penology tend to change quickly. This is evident, for example, with penal rehabilitationism. Three decades ago, rehabilitation was widely perceived by criminologists and reformers as the primary aim of sentencing (Allen, 1981). Then it went into almost complete eclipse: treatment programs were seen as having largely failed and treatment-based sentences were seen as unequal and unfair (Allen, 1981). Then, in the 90s, there was a revival of optimism about the possibility of effective treatment, since many experimental programs seemed to show positive results (Bottoms, 2004; Tonry in this volume). Then again, recently, a degree of pessimism appears to be returning, with evidence (in England, for example) that the experimental programs perform poorly when they are "roiled out" for large-scale use in prison and probation systems (Bottoms, 2004).

What has been surprising about the proportionalist sentencing model has been its durability over these three decades. There remains an active interest in proportionalist sentencing theory (see for example Ashworth and Wasik, 1998; Lippke, 2007); a number of proportionality oriented sentencing schemes have shown considerable longevity (such as those of Minnesota, Finland, and Sweden); and several other jurisdictions have newly moved toward such an approach. (12) What has been the attraction of proportionalism?

For penologists of a liberal persuasion, one attraction has been the model's appeal to fairness. Traditional crime-prevention-oriented theories focus on instrumental concerns: how a sentencing strategy can best protect us from the depredations of them, the criminals. Such an instrumental focus threatens unjust results: if the aim is crime prevention, why not do whatever works for that purpose? With some crime prevention rationales--such as the deterrence-based law and economics approach--the potential for unfairness is starkly present, as John Donohue's analysis in this issue well documents. During the heyday of rehabilitation, this threat seemed muted--but by now, the potential fairness problems of some versions of the rehabilitative sentence (for example, indeterminate sentencing) have been well documented (American Friends Service Committee, 1972; von Hirsch, 1976, chap. 2). Proportionalism, however, gives notions of fairness a central role: the emphasis is on devising sanctions that comport with the degree of reprehensibleness of offender's conduct; and to maintain a reasonable degree of comparability among offenders found guilty of similarly blameworthy criminal conduct.