1. Introduction
Many philosophers and legal theorists have contributed to the growing literature on the moral justification of imprisonment as a mode of punishment. One focus has been on determining the crimes for which imprisonment is an appropriate response and the possible moral constraints on the use of imprisonment.Footnote 1 Another focus has been on issues concerning ethically defensible prison conditions.Footnote 2 Yet, these philosophical discussions have often neglected some current and important uses of imprisonment in many criminal justice systems. For example, in cases where a prison sentence is deemed inappropriate or disproportionate, non-custodial sentences, such as community service, fines, or probation programs, are encouraged. However, these non-custodial sentences are typically accompanied with the threat of imprisonment, if the offender doesn’t adhere to their requirements.Footnote 3 In this sense, imprisonment is often used as a back-up sanction. From a moral philosophical perspective, the use of imprisonment as a back-up sanction requires moral justification, and so it is surprising that philosophers and legal scholars working on punishment have engaged so sparsely with this issue.Footnote 4
From a standard consequentialist perspective, the use of imprisonment as a back-up sanction can be justified straightforwardly, given that it is a cost-effective means for crime prevention. For example, consequentialists aligning with Jeremy Bentham consider the harm associated with punishment a necessary evil, justified only for the sake of avoiding a greater harm.Footnote 5 Therefore, such consequentialists may welcome the suggestion that, for many types of offenders, one should favor non-custodial sentences if they are equally effective in terms of crime prevention to imprisonment. But they may do so on the condition that imprisonment serves as a back-up sanction and a necessary deterrent to ensure compliance with the non-custodial sentences in question. Nevertheless, this kind of pure consequentialism is nowadays rarely considered to be an attractive theory of punishment. This is because of its compatibility with both excessive and disproportionate punishment, and because it in theory can also justify and even encourage punishing the innocent.Footnote 6 Conversely the use of imprisonment as a back-up sanction is much harder to justify from a retributivist perspective, with its emphasis on just desert or deserved censure.
Retributivist theories hold that it is morally permissible to inflict punishment if it is deserved. One basic assumption of retributivist theories of punishment is that wrongdoers deserve to suffer punishment that is proportionate to the seriousness of their wrongdoing. In the literature on proportionality in sentencing, it is common to distinguish between ordinal and cardinal proportionality. The former requires only that more serious crimes are punished more severely, whereas the latter concerns the absolute measures for punishment that is proportionate to a given crime.Footnote 7 I take it that a retributivist theory of punishment holds that both types of proportionality should be satisfied. For example, if one only requires that punishment should be proportionate in the ordinal sense, this is compatible either with a system where the range of punishments is 1 day up to 48 days of imprisonment, or with a system where the range is 20 years of imprisonment up to a life sentence. Yet, both systems seem unjust, as 48 days is a too lenient punishment for murder, whereas 20 years is a disproportionately large punishment for petty theft.Footnote 8 The question remains how to decide when a punishment is proportionate in the cardinal sense. Despite this difficulty, retributivism in any of its forms rests on the assumption that it is meaningful to talk about cardinal proportionality, even if such estimations are rough and vague. For example, while there is no consensus among retributivists on how to make estimations of this sort, it is commonly asserted that the deserved punishment is a function of the harm inflicted by the crime and the offender’s degree of moral culpability. This has led some retributivists to the assumption that the losses associated with the punishment should be kept commensurable to the harm inflicted by the crime, under the condition that the offender was also highly culpable for the harm.Footnote 9 This implies that less harmful crimes should be punished with a less burdensome punishment. It also implies that offenders who are not fully culpable, and therefore less blameworthy, should receive a less severe punishment depending on their degree of culpability.Footnote 10
Following the basic tenets of retributivism, it is morally impermissible to punish the innocent, and to impose disproportionately large punishments. This has important implications for the use of imprisonment as a back-up sanction. A prison sentence is typically held to be a much more severe punishment than a non-custodial sentence, even though there are differing opinions as to what makes imprisonment more severe. For example, even under relatively humane conditions, a prison term imposes a serious loss of autonomy, liberty, and privacy. Consequently, a prison sentence substantially diminishes the offenders’ chances to live decent lives shaped by their own choices, at least during their sentence. It has been suggested that these losses make imprisonment a severe penalty, suitable only for more serious types of offenses.Footnote 11 Others, such as Antony Duff, have emphasized how imprisonment’s punitive message of exclusion makes it a harsh punishment that should be reserved for the most serious of crimes.Footnote 12 As a result, retributivists often argue that less serious crimes should be subject to non-custodial sentences. But if the reason for imposing a non-custodial sentence is because a prison sentence is at risk of being too harsh, and hence a disproportionately large or inappropriate mode of punishment, retributivists need to explain how a prison term can be warranted as the back-up sanction for those who breach the requirements of their non-custodial sentence, even though their original crime wasn’t serious enough to warrant imprisonment in the first place.
This presents a serious challenge, given the widespread assumption that imprisonment must be available as the ultimate or final back-up sanction. As Antony Duff points out, this is true for the simple reason that it may be the only sanction that can be enforced when an offender refuses to comply with any other sanction required of him.Footnote 13 Other scholars, such as Richard Frase, have agreed that a tenable normative theory of sentencing must allow for and provide a justification for the use of back-up sanctions—including imprisonment—and he takes it to be a virtue of his favored view—limiting retributivism—that it can do so.Footnote 14
My aim in this paper is to critically assess to what extent retributivists can justify the use of imprisonment as the ultimate back-up sanction. To this end, I first examine two different strategies that are discussed in the literature, and which retributivists could employ in order to give a response to this problem. The first strategy stresses how desert only has a limited role in sentencing, such that it defines a range of deserved punishment. On this view, associated with limiting retributivism, one could opt for a less harsh, yet deserved punishment, leaving room for the imposition of back-up sanctions when needed. For instance, when the offender fails to abide by the requirements of his or her original non-custodial sentence. The second strategy focuses on how the act of breach is a reprehensible act that can allow for a penalty increase, and as a result lead to imprisonment. I raise skepticism about both strategies and argue that it is not clear that retributivists can employ them in order to justify the use of imprisonment as the ultimate back-up sanction for non-payment of a fine or non-performance of a community sanction. Instead, I propose and defend an alternative solution to the problem.
The paper proceeds as follows. In section 2, I focus on the first strategy. I argue that although limiting retributivism can justify imprisonment as a back-up sanction in some cases, there are other important cases where it does not. Hence, retributivists who seek to justify the use of imprisonment as the ultimate back-up sanction need to look elsewhere for an additional argument. In section 3, I turn to the second strategy. Both Andreas von Hirsch and Antony Duff have discussed this strategy in their separate works, but with different conclusions. Starting with von Hirsch, I illustrate how his argument against imprisonment being a justified back-up sanction in response to all acts of breach is consistent with his overall view. Yet, for this reason his account is at risk of being too idealistic. This is largely due to von Hirsch’s claim that it is primarily breaches that involve or threaten to impose harm on others that may call for imprisonment as the back-up. In contrast, I argue that Duff’s view can allow for imprisonment as a back-up sanction even when the breaches have not involved any direct violence. I suggest that this is because the wrongfulness in breaching the conditions of one’s non-custodial sentence, in a Duffian account, lies in the fact that one is thereby escaping one’s punishment—and therefore not fulfilling an obligation that is owed to both the victim and the community as a whole. However, while it might seem that Duff’s account is less restrictive, I raise some remarks about whether any refusal to comply with one’s non-custodial sentence are serious enough to merit imprisonment on his view. As a result, Duff’s view also leaves important questions unanswered about how to decide when imprisonment is justified as a back-up sanction. In section 4, I then propose and defend an alternative solution to the problem, according to which the proportionality principle should be treated a defeasible moral principle that can sometimes be overridden by other moral concerns. In particular, I argue that slight deviations from the proportionality requirement can sometimes be justified for the sake of ensuring a well-functioning legal system. I suggest that this provides one possible and more promising way of justifying the use of imprisonment as the ultimate back-up sanction that is open to at least some retributivist frameworks.
2. Limiting Retributivism and Back-up Sanctions
Although retributivists hold that wrongdoers should receive a punishment that is proportionate to their wrongdoing, one can raise critical remarks about what this means. How do we decide what amount and mode of punishment that a certain wrongdoer deserves? Part of the problem here is, as I have already pointed out, that the notion of cardinal proportionality is imprecise and vague. This might be perceived as a problem for retributivist theories, but as will become evident in the discussion that follows it can also serve as a possible resource when it comes to handling the problem of back-up sanctions. Even if the exact punishment that a certain wrongdoer deserves is unclear, we at least have a rough idea of what is too little and what is too much. This has led some penal philosophers to the position that deserved punishment can be expressed as a range of fitting punishments, rather than as one definite punishment. This is also the position of Richard Frase, who in a number of places argues for the theory of limiting retributivism.Footnote 15 According to this view, “the offender’s desert defines a range of morally justified punishment, setting upper and lower limits on the severity of penalties that may fairly be imposed on a given offender.”Footnote 16 Within these limits, consequentialist or utilitarian goals such as incapacitation, rehabilitation, or specific deterrence may be pursued. Sentences within the range that is deserved should not be more than necessary given these non-retributivist aims. A principle of parsimony is therefore built in to this view.Footnote 17
In one sense, this theory is not strictly retributivist, as it allows crime-preventive considerations to have a say in sentencing. Yet, it is clear that desert plays an important role. Desert functions as a limiting condition and similar to other forms of retributivism, proponents of limiting retributivism hold that any punishment beyond what is deserved is morally impermissible. But limiting retributivism also leaves important room for flexibility, as well as increasing the penalty and tightening control if needed for non-retributive reasons. For these reasons this view merits special attention here.
Following Norval Morris, Frase holds that there are always good reasons to follow the parsimony principle and choose the least severe sentence that is within the range deserved. Some of these reasons are moral. Since punishment intrudes on physical liberty and other rights, and because the benefits of punishment in terms of crime-control are uncertain, the burden of proof lies with those who hold that increased punishment severity is needed.Footnote 18 Frase also holds that there are practical reasons for favoring less severe sentences. He writes:
The practical arguments for preferring sentences less severe than the offender’s maximum desert flow not only from efficiency concerns (less severity is often adequate to achieve all utilitarian goals) but also from the pervasive need to encourage and reward cooperation from those accused of crime. Given the state’s limited resources and powers, there is a compelling need to obtain guilty pleas, waivers of jury trial and other rights, and cooperation in convicting other defendants. In addition, defendants placed on probation or parole must be encouraged to obtain and hold employment, support their dependents, make restitution, avoid risky places or behaviors, and accept treatment and supervision. Incarcerated defendants sent to prison or jail must have an incentive to cooperate with institutional rules and programs. Sentences must also leave room for backup sanctions—subsequent tightening of control (e.g., by revocation of probation or parole) if the defendant fails to cooperate—even if that failure is not, in itself, very blameworthy.Footnote 19
An important aspect of this view, then, is that a more burdensome punishment can be called for as the back-up sanction, even if the failure to abide by the requirements of the non-custodial sentence in itself is not very blameworthy. Rather, the back-up sanction is morally permissible insofar as the total amount of punishment imposed is deemed necessary for utilitarian goals and within the range of deserved punishment.
According to Frase, many modern systems of law enforcement function in accordance with limiting retributivism, as offenders in many criminal justice systems often receive less severe sanctions than the maximum they deserve in return for their cooperation.Footnote 20 I grant that these practical concerns make limiting retributivism an attractive normative theory of sentencing. Its recommendations easily appear to be intuitive and unproblematic. For example, one reason why transferring a non-custodial sentence into a prison sentence could be perceived as unproblematic is simply because non-custodial sentences, as they are sometimes portrayed, are given instead of a prison sentence and given that certain conditions are met. This, I think, is a reasonable response to the sorts of crimes that merit a punishment ranging from a non-custodial sentence up to a prison term. Following limiting retributivism, we should in those cases opt for not imprisoning those who commit such crimes, at least initially, but not because they don’t deserve it (since they might). Rather, we should do so partly because we wish to avoid the negative aspects and costs associated with short prison sentencesFootnote 21, but also in order to be able to ratchet things up if they fail to comply with the less severe sanctions without violating desert constraints.
However, this sort of reasoning should not be too lightheartedly applied to the use of prison sentences as the ultimate back-up sanction. While it is probably true that many offenders who receive a non-custodial sanction deserve this as their minimum sentence, Frase’s line of reasoning needs to presuppose that a prison sentence is within the range deserved. Perhaps this is true for many types of offenses, but as several retributivists have argued, there are crimes which arguably do not deserve imprisonment at all.Footnote 22 For example, Richard Lippke has argued that given its severity, imprisonment is a justified punishment only to a limited range of crimes. Even humane forms of imprisonment involve serious deprivations of autonomy, liberty, and privacy. It therefore substantially diminishes the offenders’ chances to live decent lives shaped by their own choices, at least during the time of their incarceration.Footnote 23 Lippke argues that this makes imprisonment a severe punishment, and that its use should therefore be restricted to the type of crimes that, with high degree of moral culpability, inflict commensurable losses on their victims. The clearest examples include crimes where the offender deliberately inflict (or threatens to inflict) loss of life or severe physical and psychological injuries, including homicide, aggravated assault, sexual assault, kidnapping, and terrorism.Footnote 24 In contrast, non-violent property crimes may cause inconveniences of various kinds for the victims, but given how short-lived these often are and how the availability of insurance allows for the quick replacement of stolen or destroyed goods, these crimes cause harms that are not proportionate or comparable to the losses associated with imprisonment.Footnote 25 By similar reasoning, many victimless crimes, including many drug crimes, are arguably not serious enough to justify imprisonment.Footnote 26
I believe that many retributivists will (and indeed should) agree with Lippke, and that it is natural to suppose that there are at least some crimes for which the offenders do not deserve imprisonment. This means that they do not deserve imprisonment even as the maximal sentence. But if this is so, proponents of limiting retributivism should also agree that imprisonment should not be used as the back-up sanction when dealing with offenders sentenced for these sorts of crimes. Sure, some punishment may be used as a back-up sanction, even though imprisonment is too severe. But retributivists who wish to argue that imprisonment can be justified as the back-up sanction even in these cases, and thus as the ultimate back-up sanction, need to look elsewhere for an additional argument.
3. Back-up as a Retributive Response to the Act of Breach
One way to explain how a prison term can be deserved for those who breach the requirements of their non-custodial sentence is that the breach as such is a reprehensible act for which a modest addition to the ‘penal bite’ can be deserved. This strategy is discussed by both von Hirsch and by Duff in their separate works. There are important differences between the two, however, not least because they are in disagreement about whether imprisonment is justifiable as the ultimate back-up sanction. It is therefore worth discussing them separately. In what follows, I start with von Hirsch’s account and his resistance against the use of imprisonment as the back-up sanction for low scale offenses. After that I turn to Duff’s defense of imprisonment as the ultimate or final back-up sanction.
3.1. von Hirsch on back-up sanctions
In von Hirsch’s view, criminal offenders should be punished in proportion to the severity of their criminal offense. Since imprisonment, especially for longer periods, is a severe and burdensome punishment, its use should be reserved for more serious crimes. Non-custodial sentences, that are less burdensome than imprisonment, should be the punishment for less serious offenses.Footnote 27 This is in accordance with von Hirsch’s overall view that the justifying aim of punishment is to communicate deserved censure and that punishment should be allocated in accordance and consistently with its blaming implications. This view implies that less severe punishment should be given for less serious and less blameworthy acts, whereas more severe punishment should be given for more serious and more blameworthy acts. By the same principle, it would be unfair to punish two offenders guilty of crimes of equal severity substantially differently, as this would falsely suggest that they are not equally blameworthy.Footnote 28 Although punishment, in von Hirsch’s view, is a matter of communicating deserved censure, a well-known aspect of his view is that punishment, in the form of hard treatment, is also warranted for the sake of providing supplementary prudential reasons for fallible beings like us, to whom the moral reasons for abiding the law are not always enough.Footnote 29 But even though deterrence has an important part to play, it is the importance of appropriately communicating how blameworthy the act was that decides how and how much punishment should be allocated. Unlike limiting retributivism, then, this view holds that consequentialist considerations should not be considered when deciding the level of punishment for a certain type of offense, and only under very strict conditions for a specific offender.Footnote 30
von Hirsch recognizes that something needs to be done in case an offender doesn’t abide with the requirements of his or her non-custodial sentence.Footnote 31 In some cases, this could mean that imprisonment should serve as the back-up sanction. But how can a prison sentence be deserved in these cases? In his recent book Deserved Criminal Sentences and in previous workFootnote 32, von Hirsch suggests that there are two components involved when breaching the requirements of one’s non-custodial sentence. Firstly, the offender hasn´t completed his original sentence, but still owes the part which has not yet been completed in some form. Secondly, the act of breach may in itself be a reprehensible act that deserves some additional punishment. Commenting on these two components, von Hirsch recognizes that the first doesn’t need to imply imprisonment, as it only suggests that the uncompleted part of the sentence should be completed in a more enforceable form but doesn’t call for a more severe response. To this end, more intensive supervision might be enough, whereas a prison term is at the risk of being excessive. The second component, however, suggests that a modest addition to the ‘penal bite’ can be justified, depending on how reprehensible the breach was.Footnote 33 This could justify resorting to imprisonment, but von Hirsch suggests that the second component too shows that it should be used sparingly as a back-up. Many breaches lack a victim, and are therefore not sufficiently reprehensible or comparable to the sort of acts for which we intuitively think that it is justified to impose a prison term, such as acts of violence or acts that have a clear negative impact on victims’ quality of life.Footnote 34 Therefore, the breach can only allow for a modest addition to the ‘penal bite’, and it is far from evident that this would be enough to justify imprisonment as the back-up, especially in the case of low scale offenses.Footnote 35 von Hirsch notes, however, that in some cases non-custodial sentences do not only impose routines or requirements that the offender must adhere to, but also impose the further conditions, including that the offender should refrain from committing new crimes. Such conditions should be treated differently according to von Hirsch, and when they are violated he suggests that they should be treated as an instance of recidivism, which in turn could warrant a prison sentence dependent on the crime.Footnote 36
Frase has raised several critical questions to von Hirsch’s account on the basis that it is too restrictive and, as a result, insufficient for the sake of social control. Much of Frase’s critique stems from the fact that the principle of proportionality, in von Hirsch’s view, requires a rather strict matching of punishment and offenders’ desert and parity in sentencing. As a result, Frase holds that von Hirsh’s account doesn’t provide sufficient room for the sort of flexibility that Frase believes is required for a workable sentencing system.
Starting with the first of von Hirsch’s components, Frase holds that if the back-up sanction merely consists of having the original sentence converted into a more enforceable sanction, without any increase in terms of the overall severity, this will fail to give the individual enough incentive to comply with the conditions of the original sentence. Moreover, if the back-up sanction is easier to enforce, then why not choose this punishment instead, if they are equal in severity? One reason why one should opt for the less enforceable sanction, Frase argues, is because of the costs and resources associated with the more enforceable sanction. But for such a system to work, one must provide offenders with clear incentives to complete the less expensive punishment. To do so, the back-up sanction must be more burdensome.Footnote 37 As discussed above, Frase holds that this is something that limiting retributivism can allow for, as it encourages sentencers to impose a less burdensome punishment at first. This leaves important room for the imposition of back-up sanctions as a means of increasing the overall severity of the punishment when needed, without exceeding the upper limits of desert (even though I have raised some critical remarks whether this always entails imprisonment). In contrast, Frase holds that von Hirsch’s must make a more problematic assumption, namely that the punishment deserved is increased due to the violations of the requirements of one’s non-custodial sentence. Even so, Frase holds that this too would provide insufficient incentives for controlling risky and non-cooperative offenders, because the second of von Hirsch’s components suggests that imprisonment should be used sparingly as a back-up and because it is only reprehensible acts that call for increasing punishment severity.Footnote 38
In response, it should be acknowledged that von Hirsch’s account doesn’t rule out the fact that certain factors beyond crime severity might be relevant for sentencing. To the contrary, his account can allow for both crime preventive and economic considerations to have a say when deciding between two possible sanctions of comparable severity. Thus, von Hirsch and others have good reasons to favor non-custodial sentences over short prison sentences, even if the latter is easier to enforce. This is partly a matter of economic costs, as Frase suggests, but also because non-custodial sentences often are preferable from a crime-preventive point of view, given how short prison sentences too often create more problems than they solve.Footnote 39 But in these borderline cases, where the punishment that a certain offender deserves could either be a longer or more intensive non-custodial sentence or a short prison sentence, von Hirsch’s view can also allow for imprisonment to be used as the back-up sanction.Footnote 40
Even if this solves some of the concerns that critics might have, it is not certain that they will find it fully convincing. To the contrary, critics will most likely continue to raise the issue of whether von Hirsch’s account provides sufficient incentives to comply with their non-custodial sanction. Perhaps this is even more uncertain in cases where it is unclear that the wrongdoer deserves a prison sentence at all—such as in the case of minor property crimes or minor drug offenses. This is an empirical question, but as shown above, Frase is skeptical about this. This skepticism is largely due to von Hirsch’s claim that the act of breach as such doesn’t necessarily involve violence or threat of violence and, consequently, has no negative impact on a victim’s quality of life. As a result, von Hirsh holds that it is far from certain that this would be enough to justifiably impose a prison term as the back-up sanction in these cases. Frase therefore asks whether von Hirsch’s account really can provide “enough incentive and control to handle all cases of breach, even by the most risky and least cooperative offenders?”Footnote 41 After all, it is in these cases that imprisonment as a back-up is probably needed the most. Frase also argues that there often is a need to tighten control for reasons that are not related to any reprehensible act or behavior. For example, mere technical breaches, but also other developments, such as when the offender has lost his job or housing, or is shown to have a drinking problem, may suggest an increased crime risk that calls for more control as a preventive measure.Footnote 42 Yet, these increased risks are not necessarily the result of any reprehensible act and should therefore not result in any penalty increase according to von Hirsch’s account. But von Hirsch’s reason to resist increased punishment in these cases isn’t odd—at least not from a retributivist point of view.
Firstly, it follows from von Hirsch’s view that the use of imprisonment as a back-up should be resisted in these cases because resorting to imprisonment is at risk of being an excessive and disproportionate punishment. If it were allowed, it would violate the proportionality principle. Given that less severe punishment should be given for less blameworthy acts, increasing the severity for reasons connected to no further reprehensible act may falsely portray the criminal acts as being more blameworthy than they are. Given that it would be unfair to punish two offenders guilty of crimes of equal severity substantially differently, there is also the risk of giving the false impression that the offenders are not equally blameworthy. With all this in mind, an advocate of von Hirsch’s model may respond that as in any sentencing, the purpose of back-up sanctions isn’t merely, as Frase seems to suggests, to exercise control and to ensure compliance with non-custodial regulations or probation requirements. Rather, the purpose is to ensure that justice is served. To this end, an easily enforced punishment may be called for, but it cannot be allowed to impose more punishment than what is deserved.
Secondly, besides the risk of being excessive, retributivists should also—given the backward-looking nature of their view—be reluctant to punish people for the possible dangers they pose independent of further criminal acts or more-than-technical violations of non-custodial sanctions.Footnote 43 Instead, increasing the penalty by tightening control and intensifying supervision in response to mere technical breaches seems to imply that we are punishing individuals for their anticipated crimes rather than actual crimes, which amounts to a form of pre-punishment that is typically held to be morally objectionable. In response, it could be argued that retributivism doesn’t necessarily rule out the permissibility of pre-punishment.Footnote 44 But even if retributivists could accept pre-punishment in principle, this is only so if we are certain that the individual to be punished will indeed commit the crime but also that they, at the time of the crime, has the kind of moral self-governance that retributivist typically hold is required for criminal liability.Footnote 45 We rarely (if ever) possess enough knowledge of this sort and hence we cannot determine when a certain preventive measure is morally justified from a retributivist perspective, or if it is so at all.
Thus, those who find Von Hirsch’s view attractive will have to accept that it is probably not possible to justify imprisonment as the ultimate back-up sanction. von Hirsch and others might see this as a good thing, as it provides reasons against overusing incarceration and prison as the prime means of punishment.Footnote 46 However, to others this might appear to be an overly idealistic position. For example, as Duff and Marshall points out “[I]mprisonment matters not just as a sentence that may be passed at conviction, but as a backup sanction of last resort on which other modes of punishment rely: when an offender keeps reappearing in court after a string of noncustodial sentences, sentencers often fall back on imprisonment; and imprisonment often functions as a final sanction for breaches of the requirements of noncustodial sentences.”Footnote 47 It is therefore worth considering Duff’s attempt to defend of the use of imprisonment as the ultimate or final back-up sanction from a retributivist perspective.
3.2. Duff on back-up sanctions
Like von Hirsch, Duff holds that imprisonment should be reserved for the most serious kinds of crimes. In his view, which is labelled the ‘communicative theory of punishment’, the justifying aim of punishment is to communicate the censure that the offender deserves for having committed his crime.Footnote 48 In accordance with this view, Duff argues that any punishment must respect offenders as rational moral agents and as members of a normative community. Punishment, in a liberal community, should be inclusionary and treat offenders as autonomous moral agents and as members of the community who, even though they have violated its core values, can be committed to and recommit to them.Footnote 49 Therefore, punishment, in this view, is not a matter of providing threats nor does it serve as a deterrent. Rather, it is a form of moral communication by which the offender is given the moral reasons to persuade him or her about the wrongfulness of their conduct.Footnote 50 As such, Duff holds that criminal punishment is morally justified as a form of secular penance. It is “a burden imposed on an offender for his crime, through which, it is hoped, he will come to repent his crime, begin to reform himself, and thus reconcile himself with those he has wronged.”Footnote 51 As a form of secular penance, criminal punishment will ideally make the offender repent his crime, but also provide the chance for the offender to communicate this to the victim and to the wider society. A repentant offender can do so by taking the message communicated by his punishment seriously through self-reform, and by his willingness to undergo his penitential punishment as a form of apologetic reparation to those he has wronged, including both the victim and society as a whole.Footnote 52
Duff’s view has important implications for imprisonment, since the most salient aspect of it is how it excludes and removes the individuals from the normative community. Given that punishment should be inclusionary (which is something Duff emphasizes a lot), imprisonment is a very serious punishment. Duff argues that it must be reserved for the sort of criminal offender who “has not just damaged or threatened, but has broken, the normative bonds of community.”Footnote 53 To such an offender, his imprisonment communicates how he has “made it impossible for us to live with him in the ordinary community of fellow citizenship unless and until he has undergone this penitential punishment.”Footnote 54 It should be observed, that it is not always clear what this really means. For example, Duff does not provide an explicit list of the types of wrongs he believes merit imprisonment, but merely suggests that it “depends on the community’s understanding of what kinds of wrong make community impossible”.Footnote 55 This lack of clarity may leave some philosophers and legal theorists disappointed.Footnote 56 What is clear, however, is that imprisonment should be sparingly used according to Duff’s view.
As already mentioned, Duff also recognizes that imprisonment must be available as the ultimate back-up sanction. As he points out, it seems as if imprisonment must be available as such, since “it might be the only sanction that can be enforced against those who fail to comply with other sanctions” and because the law “cannot allow offenders to escape punishment simply by refusing to comply with the requirements of their sentence.”Footnote 57 However, Duff is cautious and argues that we should distinguish those who willfully breach the requirements from those who fail to comply due to incompetence or due to the lack of resources. In the latter case, we should seek to help and assist the offender rather than to increase their punishment. In the former case, though, Duff argues that there may be room for imprisonment as a back-up sanction for those “who willfully fail to comply with all the other sanctions required of them.”Footnote 58 In those cases, Duff argues that such “a persistent refusal to comply with what is penally required becomes a serious enough breach of the conditions of community to warrant imprisonment.”Footnote 59
This part of Duff’s proposal corresponds with von Hirsch’s second component: the act of breach is a moral wrong in itself and can deserve some additional punishment. There are important differences between their views, however. Duff talks about persistent and willful violations, which suggest that it is not necessarily an individual breach, but a reoccurring behavior that calls for imprisonment. In contrast, von Hirsch’s discussion focuses more on the matter of whether the act of breach is serious enough to warrant imprisonment. As we have seen, von Hirsch argues that many breaches aren’t comparable with crimes which otherwise merit imprisonment, and hence cannot warrant a prison sentence as the back-up.
But how, exactly, are persistent and willful violations of the requirements of one’s non-custodial sentence such a wrong? Duff is not clear on this point. As I have already indicated, Duff holds that imprisonment, due to how it excludes and removes the offender from the community, is a mode of punishment that should be reserved only for the most serious crimes. This means that persistent and willful disobedience should also be wrongful to such an extent that it is on par with what can otherwise be imprisonable. I have suggested elsewhere that one possible interpretation is that the wrongfulness of such conduct lies in it being a continuous attempt to escape one’s punishment.Footnote 60 Non-custodial sentences, such as probation programs, simply consist in the burden associated with abiding certain requirements, which is jointly an attempt to communicate deserved censure, and, in Duff’s view, constitutes an attempt to persuade the offender about the wrongfulness of his behavior. As such, it communicates the need for reform, but also the need for apologetic reparation. In short, a non-custodial sentence can constitute an appropriate form of secular penance.Footnote 61 However, simply refusing to abide by these requirements does not only mean that one merely refuses to listen to the message or that one doesn’t accept the message communicated by one’s punishment. It equally means that one escapes the punishment and thereby refuses to participate at all in the type of apologetic reparation that is owed and which the punishment ideally constitutes. This is in itself arguably a serious wrong. To take this even further, one possible interpretation of Duff’s argument is that the offender not only owes a punishment equivalent to the one that he has escaped.Footnote 62 Given that undergoing or undertaking the burdens is something that the offender owes both the victim as well as the community, simply refusing to do so also means that the offender violates a duty which she has acquired because of her wrongdoing.Footnote 63 In accordance with Duff’s previous comments, we may argue that deliberately violating this duty, by persistently and willingly refusing to abide by any non-custodial sentence, is at least sometimes serious enough to warrant imprisonment.
Alastair Cochrane has argued that the use of back-up sanctions is incompatible with Duff’s communicative retributivism. This is because it is incompatible with Duff’s claim that punishment should engage with offenders as rational moral agents—seeking to persuade them about their wrong and not manipulate or force them into repentance. When imprisonment is used as the ultimate back-up sanction, Cochrane argues, it is posing a threat of the kind that will manipulate the offender into compliance rather than engage with him or her as a rational moral agent.Footnote 64 In response, I grant that this is an important criticism, but I also believe that what I have argued so far is compatible with the requirement that one should respect the offender as a rational moral agent. Because while offenders—in virtue of being rational moral agents—may rightfully have a right to remain unpersuaded (and probably often will be so), this doesn’t imply that they have the right to refuse to hear the message that their punishments are held to communicate.Footnote 65 That is, the communicative theorist can retain that the offender doesn’t have the right to escape one’s punishment altogether, and that escaping would indeed constitute an additional wrong that deserves to be censured.
One implication of Duff’s argument seems to be that imprisonment can be warranted as a back-up sanction even when the violation of non-custodial requirements doesn’t involve violence or threat of harm to others. What suffices seems to be a willful and persistent refusal to partake at all in the apologetic reparation that is owed, which may be a violation of an important duty in Duff’s view. If this claim is tenable, this makes Duff’s account wider in scope and provides a possible response to Frase’s complaints that have been discussed in relation to von Hirsch’s account.
Despite this, the question remains whether a refusal to comply with one’s non-custodial sentence should always entail imprisonment in Duff’s view, even when persistent and willful. Intuitively, a willful attempt to escape one’s punishment, and as a result the apologetic duty that is owed, is worse the more serious the original crime was. For example, a willful refusal to make apologetic reparations for a serious moral wrong, such physical abuse or grave forms of sexual harassment, arguably displays a greater disregard for the victim and community compared to a refusal to make apologetic reparations for a non-violent property crime. In the latter case, it also seems too strong to say that the refusal to make apologetic reparations is always a wrong serious enough to warrant a prison sentence, even if it is a short one. Similarly, a person who refuses to either pay a fine or complete a community sanction for unlawful driving may be doing something that is not serious enough to warrant imprisonment—even though he is willfully escaping his punishment. To put it in Duff’s terminology, it is not obvious that these are moral wrongs by which one has excluded oneself from the community or made it impossible for us to live with the wrongdoer. If it is, this fits ill with Duff’s view that imprisonment should be reserved for “the most serious community-destroying crimes.”Footnote 66 It would also suggest that the bar for what counts as a community-destroying crime is fairly low.
If the above is correct, this suggest that Duff too quickly asserts that an offender’s persistent refusal to comply with any of the sanctions required by him is “a serious enough breach of the conditions of community to warrant imprisonment.”Footnote 67 It also raises the question of how to determine when the use of imprisonment as a back-up is morally permissible and when it isn’t. In this respect, this account is less clear in comparison to von Hirsch’s, which provides clear suggestions on when imprisonment can be justifiable as a back-up and when it cannot.
4. Proportionality and Defeasibility
Non-custodial sentences, such as probation programs, community service, or fines, are often accompanied with the threat of imprisonment in case the offender doesn’t adhere to their requirements. In this sense, imprisonment is often used as the ultimate or final back-up sanction. Up to this point, I have argued that it is not clear how imprisonment can be justified as the ultimate back-up sanction from a retributivist perspective. The problem facing the retributivist is to explain how imprisonment can be deserved for those who breach the requirements of their non-custodial sentence, even though their original crime wasn't serious enough to warrant imprisonment. The discussion so far suggests this is particularly challenging in cases where it is not obvious that prison sentence is within the range deserved—including non-violent property offenses and minor drug crimes. Moreover, in these cases, it is not always clear that retributivist can claim that prison is a deserved response to the act of breach, since many acts of breach aren’t either reprehensible enough or comparable to the types of acts that retributivists typically hold warrant imprisonment. In this section, I provide a tentative proposal for how retributivist could provide a response to this problem—namely, by considering the proportionality principle as a defeasible principle that can sometimes be overridden by other morally important concerns.
While proportionality is often considered to be of great importance within retributivist theories of punishment, we can also ask questions about how important it is. For example, even if the proportionality principle is categorical, retributivists can either perceive it as a defeasible or indefeasible moral principle.Footnote 68 If the principle is indefeasible, then it requires that we impose proportionate punishments, and that it can never be overridden by other moral concerns. If it is defeasible, the proportionality principle requires that we impose proportionate punishments, but it can be overridden in exceptional circumstances, which can either allow for overly lenient or overly harsh sentences. Even so, a number of retributivists hold that we ought to treat upward and downward deviations from proportionality differently.Footnote 69 For example, Duff holds that the principle of proportionality is indefeasible with regards to imposing more punishment than is deserved, while he holds that the principle is defeasible with regards to imposing too lenient punishment.Footnote 70 According to Duff, downward deviations can be justified, but only in cases where mercy is appropriate. In contrast, he holds that upward deviations cannot be justified, since punishment must be for an offense and should communicate the censure that the offender deserves for having committed this offense.Footnote 71 Imposing a harsher punishment will therefore portray the offense as deserving more censure than it does. Yet, one may ask whether there are circumstances that permit the imposition of a slightly harsher punishment on at least some offenders, even if this would amount to an upward deviation from the proportionality principle. In particular, retributivists might argue that such a deviation can be called for in the case of those offenders who persistently and willfully violate the requirements of their non-custodial sentences. One argument for this is that while punishment is justified on the basis that it is deserved, retributivists will most likely hold that one of the reasons for having an institution of punishment in the first place is that it is required in order to secure a well-functioning and reliable legal order that ensures that those who deserve punishment are indeed punished. This requires that the punishment deserved can be enforced, however. In contrast, if those sentenced to non-custodial sentence can simply refuse to abide by its requirements, without there being any reliable means of enforcing the punishment, then this risks partly undermining the legal order and its overall aim. In those case it is arguable that a slight deviation from the proportionality requirement can be justified. Retributivists could state that if a prison sentence is the only way to make sure that such an offender is censured, and that he receives a punishment, then perhaps a prison sentence can be justified in those rare cases, even if this means that one inevitably will impose a slightly harsher punishment than what was originally deserved.
I grant that this proposal may not appear attractive to all retributivist theorists—and perhaps it shouldn’t. In particular, it suggests that retributivist must sometimes betray what is usually taken to be the core assumption in their theories—namely that offenders should not receive punishment that is disproportionate to their wrongdoing. Yet, it is important to recognize that retributivists often tend to agree that there are other valuable ends that the value of retributive justice must be weighed against.Footnote 72 This balancing again suggests why it is sometimes morally permissible to make slight downward deviations from the proportionality requirement.Footnote 73 What I suggest here is simply that slight upward deviations might be morally permissible for the sake of other ends, such as that of retaining a well-functioning legal order that has the overall aim to ensure that wrongdoers receive their just deserts.
I anticipate the objection that my proposal, rather than being a solution to the problem of how to justify the use of imprisonment as the ultimate back-up sanction from a retributivist perspective, implies that we are abandoning retributivism in favor of a mixed theory of punishment. This is because I suggest that we should take more considerations beyond deserved censure into account when meeting out a particular punishment. In response, I do not think that the solution I suggest must imply a mixed theory of punishment. The reason that I have proposed for why a slight upward deviation from the proportionality principle is one that retributivist qua retributivist could accept—namely that it is required in order to retain a reliable and well-functioning system that seeks to ensure that those who deserve to be punished are indeed punished. Note, however, that this proposal suggests that deviations from the proportionality principle can be justified only in exceptional circumstances. To keep this proposal in line with the basic commitments of retributivism as far as possible, we should be cautious about the use of imprisonment as a back-up in such cases, and reserve it for those offenders who persistently and willfully refuse to abide with the requirements of any sanction required by them. By doing so, retributivists can retain their commitment to proportionality in sentencing as far as possible, allowing upward deviations only in rare circumstances, but also retain their commitment that any punishment must ultimately be motivated by reference to the autonomous choices of the individual offender. In contrast, in case the failure to abide with the requirements are due to lack of competence or resources we should provide them with help and assistance, as Duff suggests. Thus, this proposal would not justify the use of imprisonment as the back-up in other than exceptional cases—and certainly not as the default.
