Dr Zachary Hoskins

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Retributivism, sentencing, and criminal records

Suppose Bonnie and Clyde are each convicted of the same type of criminal conduct, but whereas this is Bonnie’s first conviction, Clyde has previously been convicted and punished for the same type of conduct. Should they receive different sentences in virtue of their different criminal histories? For retributivists, who hold that sentence severity should be proportionate to what an offender deserves given the seriousness of her crime and her degree of culpability, the notion that Bonnie and Clyde should receive different sentences presents a particular challenge: why does Clyde, in virtue of his prior criminal conduct, for which he already served a proportionate measure of punishment, deserve more severe punishment for the current offence than first-timer Bonnie deserves for the same type of offence? In Doing Justice (1976), Andreas von Hirsch contended that differential sentencing based on criminal histories is consistent with the retributivist notion of proportionality. Specifically, von Hirsch argued that first-time offenders should receive a somewhat less severe sentence than repeat offenders convicted of the same type of crime. He continued to defend this view over the course of his career, although his reasoning shifted over time. I examine the evolution of von Hirsch’s view, and I contend that none of his various lines of argument succeed in justifying differential sentencing based on prior criminal records.