This short book brings together much of von Hirch’s writings (and the writings of others) on desert theory – the concept that the punishment for a criminal offence should be proportionate to its seriousness. The theory found its popularity in the 1970s after decades of consequentialist, risk-based and rehabilitation-focussed sentencing. von Hirsch, one of the primary proponents of desert theory, brings together in this volume what has hitherto been a disparate collection of articles and chapters. This is a valuable update to the Ashworth/von Hirsch work ‘Proportionate Sentencing’ (2005).
The beginning of the volume sets out the growth of support for desert and its origins. While this is largely descriptive, it provides an important background to the following chapters, with little snippets of analysis, such as the view that desert better appeals to fairness than some consequentialist theory grounded in crime-prevention.
Chapter 5 most interested me; von Hirsch deals with ordinal and cardinal proportionality and takes on the ‘limiting retributivist’ model, first proffered by Norval Morris. This chapter contains a development of sorts, with von Hirsch developing earlier writings on this topic, to better argue his position in rejection of Morris’. Of particular interest also, is Chapter 7 concerning previous convictions. This is a long-standing debate with little agreement as to the role that previous convictions ought to play in sentencing (it being accepted by almost all that they have some role). This has strong practical implications, particularly in instances of low-level offending where it is the previous conviction(s) not the offence itself which results in custody. von Hirsch here reneges on his earlier view that a previous conviction alters the seriousness of the offence for which the offender is now to be sentenced. This underlines the fact that this work is not simply a restatement of desert theory, or a cut-and-paste job of earlier writings, but a new and updated contribution. Chapter 9 considers mixed theories to the extent that they permit a derogation from pure desert. This is perhaps one of the most practical elements of the title given that most Western systems adopt an approach grounded in retributivism but with consequentialist elements.
What this short volume does particularly well however is to summarise and engage with desert theory in particularly accessible manner. von Hirsch has created yet another contribution to the scholarly debate on desert, providing a never-before-seen compendium of the discussions and debates concerning desert over the past five decades. This book will be a valuable addition to the library of anyone interested in penal theory and I thoroughly recommend it.
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