G.G. Dear Professor von Hirsch, the first question in our interview concerns the relationship between criminal law and philosophy, because you have been working for many decades with analytic ethics and its application to principles of criminal law.
A.v.H. Concepts in criminal law such as wrongfulness and culpability have strong moral overtones. Thus ideas drawn from analytic moral philosophy can be helpful -- for example, those concerning the rationale for punishment, and the limits of prevention and other utilitarian aims. This style of analysis developed in England and America, a few decades ago, and is now also in use in philosophical discussion in Germany and elsewhere on the Continent.
G.G, English analytical philosophy... but less so, traditional continental philosophy... might we disappoint our friends here [in Germany]?
A.v.H. I visited Cambridge last autumn, for a colloquium on penal theory for the 40th anniversary of my first book, Doing Justice. In that book and my later writings, my arguments do make use of notions derived directly or indirectly from analytic moral philosophy.
G.G. You are a proponent of a liberal approach in criminal law. You emphasize the moral autonomy of the individual and proportionality between crime and punishment.
G.G. Now, however, we are experiencing a massive counterattack of preventive criminal law.
A.v.H. Yes, that is true -- especially in some places.
G.G. What defense can your approach provide against this counter-attack of prevention? Ι have read a recent article of yours, in which you are proposing some constitutional constraints against grossly disproportionate punishments.
A.v.H. Yes, indeed. However, many of the important constraints on punishment -- most importantly, those concerning proportionality between crimes' seriousness and punishments' severity -- are not constitutional principles. Instead, they are principles of criminal law, supported by normative arguments concerning fairness.
G.G. That will be our next question. You are not satisfied with the Germans reliance on the Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle). What do you think are the limitations of that kind of approach?
A.v.H. It answers a different question. Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle) is a "forward-looking" notion of proportionality. For example, in seeking to deter people from committing minor offences in future, you shouldn't impose harsh sanctions -- because prevention of minor criminality is simply not important enough to warrant imposing so much suffering on convicted offenders.
G.G. All right, but in Germany, apart from the Verhältnismäßigkeitsprinzip (means-ends-proportionality- principle), we also have the Schuldprinzip (principle of culpability). The Germans claim that the Schuldprinzip (principle of culpability) is, from a normative point of view, more important than the Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle). Thus so that the penalties should be limited by this principle and further limited by the Schuldprinzip (principle of culpability). What is your opinion about the “Schuldprinzip” (principle of culpability)?
A.v.H. The Schuldprinzip (principle of culpability) is most important. My theory of desert-based criminal sentencing stem from the Schuldprinzip (principle of culpability). Punishments should be proportionate to the Schuld (degree of seriousness) of the convicted person's criminal conduct
G.G. Is the principle of proportionality (between crime and punishment) a kind of extension, a kind of implementation of the Schuldprinzip (principle of culpability)?
A.v.H. It’s a direct application. The principle of proportionality (between crime and punishment) prescribes that one should punish a convicted defendant in proportion to his degree of culpability -- that is, the seriousness of his criminal offences.
G.G. So the principle of proportionality between crime and punishment is not the same with the forward-looking Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle)?
A.v.H. No, the two principles are distinct, and both should be complied with.The Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle) is a correct principle, but it has another function. Suppose, for example, suppose that one finds out that commiting certain minor offences is a good predictor of major crimes that the convicted offender might commit later. The Verhältnismäßigkeitsprinzip (means-ends proportionality-principle) would then assert that a severe response to such minor crimes could be permissible, because that would be a "proportionate" means for preventing the serious crimes on the offender's part in future. The Schuldprinzip (principle of culpability), however,is retrospectively directed, and would not permit this. Since the offender has only been convicted of a lesser offence. he does not deserve a severe punishment. Hence, according to the principle of proportionality (between crime and punishment), he should not be punished severely for such lesser infractions. What the offender may do in future should not count, for that purpose. So the two principles are different, and it is my view is that the principle of proportionality -- which is an implementation of the Schuldprinzip (principle of culpability) should serve as the most important limiting principle for criminal sentencing.
G.G. As we know, you are the main founder of the "just desert" model for sentencing. After 40 years of gathered experience, do you think that there are certain jurisdictions for which the implementation of the just deserts model could be thought as more, or less, promising? I am asking because of Greece. Might the eventual adoption of that model in our penal system have undesirable results?
A.v.H. That’s an important question. It’s only advisable to try to implement the desert model in places that are willing to abide by its basic norms and limits. For example, if one had tried to implement the desert model in Greece during the rule of the military junta, the results could have been most undesirable. Remember, the desert principle also has limitations on the overall severity of the penalty scale. So if one tries to implement this model in a place where those in power don’t wish such constraints -- and want to carry out harsh penal policies -- then it’s a mistake to try carrying out the desert model there.
England's experience in the 1990's is illustrative of the importance of the political environment That country's 1993 Criminal Justice Act attempted to implement a desert model, and provided that “the punishment should be proportionate to the seriousness of the crime”. Later in that decade,however, the political environment changed to one favouring much tougher punishments. The law's criterion was thus changed to "proportionate to the seriousness of the crime and the need for deterrence of the crime”. thus permitting severe deterrent sentences. Fortunately, however, the preoccupation with toughness sentencing diminished subsequently, and the legal standard has been changed back to emphasising the degree of the crime's seriousness -- thus restoring a desert-based standard.
G.G. Ok, let’s turn to another point then. In the last years, we have experienced a revival of rehabilitation. Surveys show that finally “something works”: rehabilitation is capable of reducing recidivism to a certain extent. If the treatment period doesn’t get in conflict with the proportionality principle and offenders have free choice whether to participate in the treatment programs, do you think that this “new rehabilitation” complies with just deserts?
A.v.H. There has recently been some renewed optimism about rehabilitation, but we should be cautious about claiming wholesale treatment success. My Cambridge colleague Anthony Bottoms and I co-authored an article on the effectiveness of penal treatment in a 2010 essay collection,The Oxford Handbook of Empirical Legal Research. The research had suggested some promising new rehabilitative programs. The successful programs, however, tended to be small-scale experimental efforts, conducted with enthusiastic treatment personnel. But when such programs were carried out on a large scale, say, within the prison system as a whole-- where there were less committed prison officers and more recalcitrant offenders -- the positive effects tended to diminish. So we need to be realistic about the extent of the "new rehabilitation's" successes.
But suppose some of these newer treatment programs actually successful in reducing recidivism on a sufficient scale. Should they then be used? The answer would be yes, provided that they would not alter the duration or onerousness of the sentence, so as to make penalties less proportionate to crimes' seriousness.[See, my 2005 book with AndrewAshworth, Proportionate Sentencing: Exploring the Principles, pp 140-141]
G.G. In Greece, there exists today the "double track" sentencing system, which consists of penalties and measures of security. How promising is such an approach?
A.v.H. Double-track sentencing, unless used with suitable restrictions, is potentially inconsistent with the principles underlying the desert model. It could allow for disproportionate sanctions, provided merely that they are judges opt to designate them as "security measures" rather than punishments.
G.G. Isn’t it thus a kind of doublespeak, a tricky way to bypass basic legal principles? I mean that a new sanction form was “invented”, to which the core principles of our criminal law doesn’t apply, because it’s called “security measure” and not “penalty”...
G.G. So, do you think that the double track system was a mistaken innovation?
A.v.H. "Security measures" -- to which desert requirements would not be applicable -- should be permmissible only in restricted types of cases. Judges should not have broad discretion to invoke such measures, for otherwise desert-requirements can too easily be nullified.
G.G. Another question that is important for reform of the Greek sentencing system concerns the role that substantial justice could have in a desert-based system. In your just-mentioned 2005 book with Professor Ashworth, Proportionate Sentencing: Exploring the Principles, Appendix 1, you have discussed "equity factors", such as releasing the defendant from prison before the end of his sentence, if he becomes very old or seriously ill. Is reliance on such equity factors compatible with just desert?
A.v.H. Some equity factors may be justifiable on on desert grounds, and others would be derogations from desert. If a person becomes very sick while in prison and he is therefore released early, then it can be argued that his bad health condition has made the sentence much more severe, because his disabled condition so much increases the onerousness of his prison existence. But if you release him early for reasons wholly unrelated to the sanction's degree of onerousness of his sentence, that would not be justified.
G.G. Is this what Germans call Strafempfindlichkeit (sensititivity to punishment)?
A.v.H. It’s a limited form of it that is acceptable. But general Strafempfindlichkeit (sensititivity to punishment), should not be used as a sentencing norm. Both the seriousness of the crimes and the severity of punishment should chiefly be based on standard cases.
G.G. And what if somebody suffers from cancer or AIDS?
A.v.H. Well, that’s easy. That is situation in which the person's medical condition makes the person's imprisonmment much more onerous in virtue of his greater vulnerability. In such cases, he should be released from prison early, in order observe proportionality -- for otherwise the punishment would be rendered excessive.
G.G. Ιn your 2005 book with Professor Ashworth, you criticize the English “Bernard case”, in which it was held that the recognition of equity factors should depend solely on judges' discretion. Would you like to comment that? Shouldn’t equity remain an act of discretion, as it traditionally was? And how could equity become codified in law? I am referring to the list of equity factors included in the desert-orientated Swedish Criminal Code.
A.v.H. Shakespeare did say in The Merchant of Venice: “The quality of mercy is not [con]strained”. But were equity factors to depend wholly on judges' discretion, then tender-hearted judges could impose unduly mild sentences, and hard-hearted judges could ignore or restrict equity factors altogether -- merely because that is what the individual judge feels is appropriate! The exercise of mercy should generally be guided by legal principles, and thus limited to appropriate cases.
For example, you can see in the Bernard case what can go wrong if equity is left wholly to the judge. Some offenders would get out of prison, and others remain inside, for whatever reason a judge prefers. What one needs to do with equity factors is provide a general legal framework that provides some for such decisions -- such as is provided by Sweden's listing of equity factors.
G.G. I would like your opinion about another approach to the desert principle, the “limiting retributivism”, which is supported by M. Tonry, N. Morris and R. Frase. How can we distinguish this theory from the German Spielraumtheorie --according to which proportionality provides only broad limits on permissible punishments?
A.v.H. It is a version of the Spielraumtheorie! Such an approach may properly be done to a limited extent, in what I call the “modified desert model”.
G.G. Do you mean your theory about the acceptance of limited deviations from desert up to -- up to, say, 10% or 15%, on preventive grounds?
A.v.H. Yes. That way, then the system is not solely based on desert, but permits limited (and I emphasise "limited") deviations from it. But provided that the sentencing system is mainly based principally on desert, that may be acceptable.
G.G. Over the last years there has been a lot of discussion concerning the integration of several sanction theories. Some of them are criminological theories and others normative theories. For example, Braithwaite claims that his theory of “reintegrative shaming” is an integrated theory. Do you think that a satisfying level of coherence could be accomplished through the proposal of integrated sanction theories?
A.v.H. I think the answer is only ‘somewhat’. I discuss the problem of coherence in a jointly-authored article with Andrew Ashworth and Clifford Shearing, in a 2003 essay collection entitled Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? We suggest that a ‘making amends’ model could work for a limited range of cases, within the broader framework of a proportionality-orientated sentencing system. So yes, one can mix theories – but they must be mixed consistently, and result in a recognisable and consistent overall conception that emphasises proportionality of sentence.
G.G. Ιn your accout of why punishment should exist at all, you rely on a combination of censure and "prudential" reasons for desisting from from crime. Could you please explain what exactly such a prudential reason is?
A.v.H. A prudential reason, in this context, is concerned with social benefits in future. Deterrence, for example, constitutes a prudential reason - because it provides such benefits by helping to protect citizens against crime.
G.G. Then it’s not a moral reason.
A.v.H. It’s a reason based on our self-interest. Understandably, we wish the law to provide reasonable restraints against criminal behaviour. If you are asking ‘why punish at all?’, then the reasons are based on censure and prevention in terms of Androhungsprävention. Prevention, here, is such a prudential reason.
G.G. How would we translate the German term Androhungsprävention into English?
A.v.H. There is no exact English word.
G.G. ‘Deterrence’ maybe?
A.v.H. Yes, it is basically the deterrence based on the penal system's legal threat to punish lawbreakers.
G.G. From a criminological point of view, Androhungs-prävention and deterrence are related to traditional criminology. Are there any elements of critical criminology that could be useful for a desert system? The labeling theory maybe?
A.v.H. Labeling theory might be used to some extent, provided it is shown to be sufficiently supported by available evidence (which is not yet certain). Possibly, it could be used as a reason for helping to set the anchoring points of the penalty scale.
G.G. The last question is about Greece. Which could be considered to be the most important condition for a successful application of a desert-orientated model in our country?
A.v.H. In Greece now you need to consider the potential political question. One of the premises of the desert model, if you take it seriously, is moderation in punishment. Therefore, if you try to implement the model in a place where the lawmakers don't believe in moderation, and wish to treat most offenders harshly, results may be disastrous, as I have suggested earlier in this interview. Thus implementation of the model depends on what the political climate is, because you have to get the scheme through the legislature. There was a proposal once, about applying the "just deserts" model in the U.S State of Indiana, which is an extremely conservative state. My recommendation was not to make that attempt, because the resulting penalties could well have been unreasonably drastic.
G.G. Dear Professor v. Hirsch, thank you so much for this comprehensive interview. It has been an honor and pleasure talking with you about all these interesting topics.
A.v.H. I've enjoyed discussing these matters with you.
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