Doing Justice

The "Just Deserts" model of punishment advocated by Andrew von Hirsch is a model concerned solely with justice and utility is reduced to a secondary interest. Von Hirsch's work focuses on the revise of the rationale for punishment through the study of the disposition of the convicted criminal. The purpose of the study was to "identify principles that would govern decisions about how severely offenders should be punished". The principles would then be used to determine when to incarcerate and how alternatives could be constructed and utilized.

Von Hirsch's analysis of the punishment system began with three conventional assumptions of the disposition of the criminal. First, the disposition should rehabilitate (sentence for treatment), some examples of programs were changing the character of the institution, probation, increased supervision on the streets, vocational programs and "community-based" treatment programs that took place in residential centers. However, the overall results from a variety of rehabilitating programs were disappointing. The rehabilitating disposition could not prove it's worth due to a blatant lack of control groups for comparison.

A major contributor to this failure is an ignorance of the causes of crime. The second assumption is predictive restraint (incarcerate the dangerous). The predictive restraint is based on the ability to anticipate the offenders recidivism rate. This method fails because it has an over-prediction tendency that leaves many false positives from relying on correlations and more frequently ending in mistaken intervention that leaves less dangerous or even "petty" criminals incarcerated much longer than necessary. The final assumption is individualized punishment for the offender (individualize the disposition).

Individualized punishment gives adjudicators wider discretionary powers and sanctions rehabilitative approaches based on the offenders treatment needs, which in turn, leads to unjust sentencing policies from the disparities in judgments. (II) "Just deserts" is a ideal founded on justice that focuses on the rationale of punishment by making a clear distinction between the justification of punishment and the rationalization of allocation. The justification of punishment is the heart of the first half of von Hirsch's work.

He pose's the question: Why punish at all? This stresses that punishment be defined and parameters discussed to manage a valid answer. It fundamentally differs from the other models of punishment because its aim of punishment is to discipline the offender more wholly by taking into account prior convictions; other models seek to justify punishment by preventing crime through their assumed and potential significance. The utilitarian model only looks at deterrence, a forward facing approach to punishment with the "promise" to make a difference.

Von Hirsch scrutinized the utilitarian idea that the suffering of a few will bring benefits to the many, and instead proposed that in a free society an individual's right to liberty should have "priority over the collective interests". Deterrence alone is not sufficient justification for the utility of the deprivation of an individual's fundamental rights. Although deterrence may have a social usefulness in accounting for the existence of punishment, deserts is necessary to justify that utility.

The deserts model stands apart from the rehabilitative model as well primarily because rehabilitation is not based on the same type of justice driven ideal. Rehabilitation strives to view the offender as a victim so they can be "fixed" and able to rejoin society. This model also sanctions disparity in sentencing in order to individualize the offender's treatment program. "Just deserts" is only concerned with attaining justice for crimes committed through a penalty proportional to the severity of the crime, rejecting charity and mercy.

This equilibrium is similar to the Retributive model's goal but retributivism punishes more often for ability, so the criminal "won't get away with it", or "because they deserve it". Retribution is the criminal "paying back" for the inequalities he caused that placed a burden on society. "Just deserts" however, is concerned only with the offense at hand and not balancing a societal weighting scale. After matching a punishment to a crime, the deserts model augments the sentencing by accounting for the magnitude of the offense, the magnitude of the blameworthiness, and the magnitude of the allocation.

(III) The rationalization of allocation is the heart of the second half of von Hirsch's work. "Just deserts" ascertains a principle of proportionality, otherwise known as "commensurate deserts" , a requirement of justice according to von Hirsch.. This principle clarifies punishment allocation through weighting the severity of punishment relative with the gravity of the wrong. It has been proven that inherent blame increases with harsher sentencing and under the deserts principle only a serious crime should be enough to merit the contained disposition.

Unlike the utilitarian model, this principle protects the rights of the punished by ensuring that they would not be unjustifiably forfeited for the benefit of others. Furthermore, it ensures that the blameworthiness of the offenders is no more than is necessary by the disposition of the offense, however just as the principle impedes inequitable harshness it also impedes inconsistent leniency as well. A standard must be followed to establish applying the principle consistently by placing a limit on judicial discretion.