Prisons, Proportionality and Recent Penal History
| Author | Andrew Ashworth |
| Date | 01 May 2017 |
| Published date | 01 May 2017 |
| DOI | http://doi.org/10.1111/1468-2230.12266 |
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Prisons, Proportionality and Recent Penal History
Andrew Ashworth∗
A leading aim of the Criminal Justice Act 1991 was to install the principle of proportion-
ality as the primary rationale for sentencing and to bring about a reduction in the use of
imprisonment. In the decade that followed the prison population in England and Wales rose
steeply. This ar ticle examines the reasons for the rising use of prison, in order to assess whether
proportionality (or ‘just deserts’) was tried and failed. It argues that in practice the proportion-
ality principle was overwhelmed by other influences, and that deterrence and incapacitation
were the main drivers of the increasing use of imprisonment. The article goes on to argue that
proportionality theories have within them the resources to produce penal moderation, notably
the ‘drowning out’ argument, the human rights argument, and decrementalism. The article
concludes by rejecting the claim that proportionality theories are likely in practice to result in
escalating punishment.
It is well known that the prison population of England and Wales increased
steeply between 1993 and 2012. Indeed, a research paper from the Ministry of
Justice refers to the prison population as ‘almost doubling’ during this period,
from 44,246 on 30 June 1993 to 86,048 on 30 June 2012.1Since 2012 the total
numbers in prison appear to have stabilised at this relatively high level (85,134
on 30 June 2016).2The steepest increases occurred during the 1990s, and this
prompts the question of causes. What changes in policy or practice brought
about this rapid rise in the proportion of offenders sentenced to custody (from
16 per cent of offenders sentenced in 1993 to 28 per cent in 2002), and then a
substantial increase in the average length of custodial sentences imposed (from
an average length of 14.3 months in 2000 to 18.8 months in 2015)?3
The most salient change might appear to have been the implementation of
the Criminal Justice Act 1991, which carried forward into legislation various
policies and principles articulated in the White Paper of 1990.4Probably the
most important of those principles was that sentences should be proportionate
to the seriousness of the offence, the proportionality principle.5While the
White Paper also laid emphasis on the need for public protection against violent
and sexual offenders, the bulk of cases were to be sentenced according to the
proportionality principle, with reliance on fines, on community sentences for
∗Vinerian Professor of English Law Emeritus, University of Oxford; I am grateful to Lucia Zedner
and Andreas von Hirsch for comments on a draft.
1 Ministry of Justice, Story of the Prison Population: 1993-2012 England and Wales (2013) 5. Within
this overall figure, the number of women prisoners trebled from some 1,500 in 1992 to some
4,500 in 2002, though falling back slightly to 3,885 in 2015: House of Commons Briefing Paper,
Prison Population Statistics (SN/SG/04334 of 2015) 5.
2 Ministry of Justice, Story of the Prison Population: 1993-2016 England and Wales (2016) 4.
3 Figures from Ministry of Justice, n 1 above, 5, and Ministry of Justice, n 2 above, 6.
4 Home Office, Crime, Justice and Protecting the Public (London: HMSO, 1990).
5ibid, para 1.6, notoriously referring to this as the ‘just desserts’ approach instead of ‘just deserts.’
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(3) MLR 473–488
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Prisons, Proportionality and Recent Penal History
more serious cases, and on imprisonment only if the offence was so serious that
only a custodial sentence could be justified. Thus the proportionality principle
was part of an agenda for reducing reliance on prison.
The purpose of this article is to examine whether the significant increase in
the use of imprisonment described in the first paragraph above demonstrates
the failure of the proportionality principle enshrined in the 1991 Act. Nicola
Lacey and Hanna Pickard have argued that the proportionality principle had a
‘decisive influence on policy’ in England and Wales and that it manifestly failed
to exert any limiting effect on the rising use of imprisonment.6They further
argue that
the retributive revival may have contributed to increasing punitiveness by legit-
imating hostile emotions against offenders without successfully institutionalizing
constraints on how these emotions should be expressed, acted upon and regulated.7
These claims are assessed below, after a brief re-statement of proportionality
theory. The implementation of the 1991 Act is examined in detail, and some
seven subsequent developments are identified as instrumental in the demise of its
principles. The article then moves from the historical to the normative, assessing
whether proportionality theory has within it the resources to produce penal
moderation. Finally, the article considers the further claim that proportionality
theory is doomed to lead to – indeed, to legitimate – escalating punishments.
A BRIEF INTRODUCTION TO PROPORTIONALITY THEORIES
According to proportionality or desert theories, the rationale for state pun-
ishment is to censure the offender for wrongdoing. The censure must be
deserved, desert being ‘an integral part of everyday judgments of praise and
blame’.8Thus the cr iminal law itself prohibits wrongdoing (involving harm
and culpability): that provides a moral reason for compliance, but there is also
a preventive element to the justification of proportionate punishment. Human
nature is notoriously fallible and simply to convict and censure wrongdoers
without imposing any hard treatment would be likely to produce lawlessness,
and so desert theories require a prudential supplement that is proportionate
to the magnitude or otherwise of the wrongdoing – a moderate amount of
‘hard treatment’ that does not drown out the moral message of the law. The
sentence should therefore communicate the appropriate degree of censure to
the offender, to the victim and to society at large.9
6 N. Lacey and H. Pickard, ‘The Chimera of Proportionality: Institutionalising Limits on Punish-
ment in Contemporary Social and Political Systems’ (2015) 78 MLR 216, 225-227.
7ibid, 218.
8 A. von Hirsch, Past or Future Crimes (Manchester: Manchester UP, 1986) 52.
9 For two strands of proportionality theory which share most of these elements, see the works of
A. von Hirsch, for example, Censure and Sanctions (Oxford: OUP, 1993) and (with A. Ashworth),
Proportionate Sentencing (Oxford: OUP, 2005) and the works of A. Duff, for example, Punishment,
Communication and Community (New York: OUP, 2001) For a challenge to the inclusion of ‘hard
474 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(3) MLR 473–488
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