Anchoring the sentencing scale: A modest proposal
| DOI | 10.1177/1362480612449778 |
| Published date | 01 November 2012 |
| Date | 01 November 2012 |
| Author | Richard L Lippke |
| Subject Matter | Articles |
Theoretical Criminology
16(4) 463 –480
© The Author(s) 2012
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DOI: 10.1177/1362480612449778
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Anchoring the sentencing
scale: A modest proposal
Richard L Lippke
Indiana University, USA
Abstract
This article proposes a partial solution to the anchoring problem in sentencing theory.
I advance what I term the ‘commensurate harms principle’, according to which the
losses and deprivations imposed on convicted offenders as punishment should be kept
commensurate with the ‘standard’ harms (Von Hirsch and Jareborg, 1991: 4) their crimes
cause victims. The principle is defended as an aid to setting sentences for core criminal
offense types. Intelligent application of the principle requires us to gain an informed
understanding of both the harms caused by crimes and the harms done by criminal
sanctions, particularly imprisonment. Various objections to the principle are addressed,
including claims that victim and penal harms cannot be compared and that the harms
produced by crimes and criminal sanctions extend beyond victims and offenders. I contend
that the commensurate harms principle would counsel the sparing use of imprisonment
and often support less harsh sentences than are the norm in many countries.
Keywords
Harm, just deserts, punishment, sanctions, sentencing
Recently, a 26-year-old Florida man was sentenced to life in prison without parole for
possessing hundreds of pornographic images of children on his home computer (Goode,
2011). There was no evidence in the case that the man had been involved in the produc-
tion or distribution of the pornographic images. Also, he had no prior criminal record.
Critics of the sentence pointed out that it was comparable to the sentences given to those
convicted of first-degree homicide and was likely greater than the sentence the defendant
would have received had he actually sexually molested a child (Goode, 2011). In doing
Corresponding author:
Richard L Lippke, Department of Criminal Justice, Indiana University, 403 Sycamore Hall, Bloomington,
IN 47405, USA
Email: rllippke@indiana.edu
449778TCR16410.1177/1362480612449778LippkeTheoretical Criminology
2012
Article
464 Theoretical Criminology 16(4)
so, they highlighted the seeming comparative injustice of the sentence. Critics of the
sentence might also have cited the extraordinary costs to the public of such a lengthy sen-
tence and its dubious deterrent credentials, given the paucity of evidence concerning the
deterrent effects of harsh criminal sentences (Doob and Webster, 2003). In that case, they
would have been operating squarely within an approach to sentencing that advises us to
weigh the benefits of longer or shorter sentences against their burdens or drawbacks.
Yet there is another kind of concern that might be raised against the sentence in the
Florida case. It is one that asks us to weigh the harms done by the defendant’s criminal
conduct against the harms done to him by the penal sanctions inflicted upon him.
Whatever the harms done by the possession of child pornography, and we should con-
cede that they are non-negligible in that the demand for such materials encourages their
production and distribution, it seems unlikely that they come anywhere near the devas-
tating impact of having to spend the rest of one’s life in prison.1 The defendant’s sen-
tence was not only comparatively unjust or inefficient, it was absolutely (or non-
comparatively) unjust given a sober assessment of the gravity of the harms his actions
produced. Indeed, a considerably shorter prison sentence, say of 25 or even 10 years,
seems disproportionate in this non-comparative sense. Granted, as we imagine the sen-
tence reduced well below 10 years, the debate about whether its impact on the defendant
exceeds the harmful impact of his actions would, at some point, become an interesting
one. But the indifference of the judge, or of the sentencing scheme with which the judge
operated, to such considerations of harm balancing is stark in this case.
In suggesting that we should scrutinize the sentence in the Florida case by reference
to something other than considerations of comparative justice or social efficiency, we
bump up against one of the unsolved, and seemingly insoluble, problems of sentencing
theory. This is the problem of finding what Andrew von Hirsch has termed the ‘anchor-
ing points’ of a sentencing scheme (von Hirsch, 1993: 36; von Hirsch and Ashworth,
2005: 141–143). Von Hirsch and others believe that it is possible to devise sentencing
schemes that are comparatively or ‘ordinally’ proportionate. To achieve ordinal propor-
tionality, crimes must be ranked according to their relative seriousness and linked with a
set of sanctions that is arrayed from more to less onerous (Von Hirsch, 1993: 18). We
would thereby satisfy one of the crucial requirements of proportionality in sentencing,
one that requires us to punish more serious crimes more harshly than we punish less seri-
ous crimes. The problem is that numerous sanction schemes so arranged seem capable of
supplying ordinal proportionality, including schemes that are extremely lenient overall,
extremely harsh overall, or somewhere in-between. The extremes, in particular, are unat-
tractive in that they fail to comport with our somewhat hazy notions of absolute or non-
comparative justice (or what Von Hirsch termed ‘cardinal’ proportionality). If, for
instance, a sentencing scheme punishes murder with a substantial monetary fine and all
lesser crimes with smaller fines, most of us will believe that the scheme fails to achieve
justice (at least with respect to murderers). Similarly, if a scheme assigns minor property
offenders 10-year prison sentences and more serious offenders longer prison terms, most
of us will believe that the scheme is patently unjust in its treatment of low-level offend-
ers. Yet both schemes might satisfy the requirements of ordinal proportionality.
To solve this problem, we are in need of one or more anchors, understood as secure
links between crime types and criminal sanctions.2 Such links would reflect a clear
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