The Project of Sentencing Reform
ANDREW VON HIRSCH
The contributors to this volume, whatever their disagreements over the particulars of sentencing policy, seem united in their support of what might be called the “project of sentencing reform.” An agenda for such a project was set forth over two-and-a-half decades ago and continues to influence our own thinking today. 1 It has, to my mind, the following three main elements: a principled approach to sentencing, parsimony, and fairness.
A principled approach to sentencing. The project of sentencing reform supports a principled approach to sentencing. Sentencing reform, it is assumed, should be guided by a coherent set of aims or principles.
A principled approach does not require that there be a single, exclusive penal purpose. Several aims may properly be pursued, so long as there are explicit norms concerning their interrelationship. A desert rationale gives primacy to notions of penal censure and to proportionality of punishment to crime seriousness. Within a desert framework, however, other penal purposes may properly be taken into account, to the extent this is consistent with proportionality requirements. 2 Norval Morris's “limiting retributivism” operates with two penal goals rather than one: desert and crime prevention. Desert sets the limits for the permissible sentence, within which crime prevention goals (including rehabilitation) may be pursued (Morris 1982, chap. 5). Having the sentence depend on two main aims may be consistent with the reform project, provided that the theory can help account for the relationship between those aims.
This principled approach rules out primarily intuitive approaches to sentencing—such as the notion adopted in some Australian jurisdictions that a good sentence should be the product of an “intuitive synthesis” among different goals. 3 It also rules out the ad hoc adoption of differing sentencing goals for various different kinds of cases: that the drug offender should get a deterrent sentence, the repeat burglar an incapacitative one, and the shoplifter a rehabilitative one, and so forth. True, Morris and Tonry (1990, p. 104) speak of “purposes at sentence,”