Punishment, Poverty and Responsibility: The Case for a Hardship Defence
| Date | 01 December 1999 |
| DOI | 10.1177/a010365 |
| Author | Barbara Hudson |
| Published date | 01 December 1999 |
| Subject Matter | Articles |
PUNISHMENT, POVERTY AND
RESPONSIBILITY: THE CASE FOR
A HARDSHIP DEFENCE
BARBARA HUDSON
University of Central Lancashire, UK
INTRODUCTION
I very much appreciate Neil Hutton’s attention to my argument for ‘princi-
pled parsimony’ (Hudson, 1995). I have suggested that sentencing ought to
be able to accommodate differences in economic situation of offenders, and
argued further that such accommodation should be through the development
and application of principled criteria for economic hardship, rather than
being on the basis of individual representations for particularly sympathetic
cases. In this article, I clarify and develop my position on the possibility of a
hardship defence.1
I comment on three points of disagreement between Hutton’s article and
my own position: two points concern what I think are misrepresentations of
my position, and the third concerns an empirical disagreement about the role
of the sentencer. The two points of misrepresentation or misunderstanding
involve ideas of responsibility and of the social; the empirical point is the
balance of formal and substantive justice concerns in sentencing.
RESPONSIBILITY AND CULPABILITY
I find some confusion in Hutton’s article in the way in which he uses the
terms ‘culpability’, ‘responsibility’ and ‘blameworthiness’. Despite having a
sub-heading ‘Responsibility and Culpability’, in many places he seems to
treat the two words as synonymous. For example:
From a desert perspective, offence seriousness is comprised of harm and cul-
pability, that is the extent of harm or damage caused to victims added to the
extent of the offenders’ responsibility for the harm. (pp. 572–3)
SOCIAL & LEGAL STUDIES 0964 6639 (199912) 8:4 Copyright © 1999
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 8(4), 583–591; 010365
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584
SOCIAL & LEGAL STUDIES 8(4)
Here, Hutton appears to use the terms ‘culpability’ and ‘responsibility’ as
equivalent. He quotes me accurately as saying that indigent offenders may be
less blameworthy than those whose choices are less constrained by economic
circumstances, but appears not to allow that I do not use ‘blameworthy’ as a
simple equivalent of ‘responsibility’. For me, blameworthiness has two ele-
ments, one of which is whether or not someone actually did something
(actively and knowingly), and the other is whether the act was something that
the actor made a positive choice to do. Legal theorists generally recognize
that there is an element to culpability beyond having carried out an act; other-
wise, the sentence:
And we do not want it [the criminal law] to convict people who are not culpa-
ble for doing the actus reus. (Simester and Smith, 1996: 6)
would be nonsense.
Although it recognizes that there is more to culpability than merely doing
the act in question, legal theory has difficulty in moving consideration of
culpability beyond a fairly narrow discussion of responsibility, with current
debate mainly centred on categories such as recklessness, negligence and
omission, rather than on choice. Nonetheless, acceptance of situations such
as self-defence and various forms of physical coercion, shows that for law
culpability involves an act not only having been done, but having been done
from choice. Whereas legal theory has paid much attention to responsibility,
however, it has paid scant attention to choice.
Law’s failure to elaborate theories of choice leaves it with an absolutist,
either/or notion of choice, such that action is seen as (freely) chosen if it is
not carried out under conditions of physical coercion or mental incapacity.
David Garland has also commented on this absolutist notion of choice in law,
arguing that it conflates the ideas of agency and freedom:
The idea of agency refers to the capacity of an agent for action, its possession
of the ‘power to act’, which is the capacity to originate such actions on the basis
of calculations and decisions. Agency is a universal attribute of (socialized)
human beings . . .
Freedom, on the other hand, generally refers to a capacity to choose one’s
actions without external constraint. Freedom (unlike agency) is necessarily a
matter of degree – it is the configured range of unconstrained choice in which
agency can operate. (Garland, 1997: 196–7)
My argument rests on this separation of agency and freedom, even though
the dichotomy might not be quite so precise as Garland’s formulation indi-
cates. The term ‘power to act’ conveys to me a certain degree of freedom as
well as a Kantian capacity of reason and will. Law’s conception of responsi-
bility seems to fit this formula of reason, will and at least a minimum freedom
from external constraint very well. What is lacking, though, is acknowledge-
ment of the fact that though agents may possess – in general and in the
abstract – the power to act and therefore be responsible for any crimes they
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HUDSON: PUNISHMENT, POVERTY AND RESPONSIBILITY
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may commit, in actual concrete crime situations they are operating in a
society where possibilities of socially meaningful choices are unequally dis-
tributed. Since freedom of choice in an unequal society is necessarily a matter
of degree and is unequal between agents, the extent to which they are to be
blamed – and therefore punished – should reflect these differences and
inequalities.
THE SOCIAL AND THE GROUP
At this point I want to refer to the second of...
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