Andrew Von Hirsch Term Paper

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Just Desserts

Justice is an ambiguous term that refers to a sense of equality and 'fairness'. Social justice refers to the way in which this ideological term is put into practice. At its most basic level, social justice is the way in which a community is governed: the laws, norms and sanctions that are put into place according to the form of government. With criminal behavior, the issues of safety and moral decision-making become an important component of the debate. If crime is considered an environmentally caused event, as opposed to a personal characteristic and, or, choice, then the type of system is needs to be re-evaluated and reconstructed. The importance of commitment in conventional social control is well established, however, there has recently been an increase in interest and a 'reframing' of many of the core concepts associated with 'the need to settle a score' or punishment. Commitment has come to mean the same thing as incarcerated when viewed from certain philosophical tenets.

In the book, Doing Justice, by Andrew Von Hirsch, the theory of retributive is re-addressed. It is his belief that the purpose of the penal system is to provide punishment proportionate to the crime. Von Hirsch takes retributivism one step further, arguing that the criminal who breaks the law is taking advantage of the law-abiding citizen and that a proportionate punishment restores the balance to society. He proposes that both benefits and burdens of the system would be limited if the time spent incarcerated was limited. There would no longer be a need for rehabilitave services or treatment as the "indeterminate sentence" would no longer be appropriate. A system of "just deserts" would allow fixed limits to the punishment, determined by the severity and type of crime.

The concept of just deserts includes the provision that a person could only be punished for a particular crime and only that crime; meaning that a criminal's history would not be considered in sentencing. The issue of history is only to be regarded if there is a question of the person's culpability as it is concerned with a specific crime. Persons without a prior arrest or conviction history of the same offense are thought to have less culpability. It is a "they should know better" type of thinking that allows for greater punishment for continued offenses. The first sentence acts as a 'warning' whereas any further offenses are to be held to the maximum punishment within the law.

The second element to just deserts states that the punishment should fit the crime. This is an 'eye for an eye' view of social control that has been advocated from Biblical times and before. The resurgence of the retributive theory, specifically just deserts, may be in response to the current theme of rehabilitative sentencing that has been found to be both expensive and non-productive, considering the current recidivism rate. The retributive model is based on the idea that criminals should 'pay' for their crimes. The retributive nature of just deserts also means that it is not concerned with prevention and, or, rehabilitation. The retributive model is focused on the here and now rather than the future. Retributionists (such as Andrew Von Hirsch) would argue that punishment is a fair - and necessary - method of dealing justice. Punishments must inflict harm or suffering in order to provide a deterrent to further deviant behavior.

The political structures of control that have been created by man are a way to bring order to the chaos of community. The laws that are established provide the parameters for shared meaning within a group. Norms, mores, sanctions and enforcement provide the means to controlling the chaos that comes as a natural consequence of community. On the other hand, the community itself is the source of the conflict between Man as a social animal and Man as a solitary entity. The individual who is unable to control their reality in the present is also in danger of losing the meaning inherent in the past and the potential for the future. Life is malleable, according to the individual's perceptions and adherence to a natural state of openness to new ideas and experiences. The individual must take responsibility for their own thoughts and actions in order to understand the true meaning of community as well as justice.

The idea that there is a 'social contract' in place that includes such principles as fairness and gratitude has been a part of American society from the beginning. Utilitarianism is a moral theory of punishment based on the principle of utility wherein citizens have an obligation to comply with the state's laws of governing, insofar as doing so is beneficial. John Stuart Mill, in his essay on utilitarianism, asserts, "All action is for the sake of some end, and rules of action, it seems natural to suppose, must take their whole character and color from the end to which they are subservient. When we engage in a pursuit, a clear and precise conception of what we are pursuing would seem to be the first thing we need, instead of the last we are to look forward to. A test of right and wrong must be the means, one would think, of ascertaining what is right or wrong, and not a consequence of having already ascertained it" (Internet source). An individual has a right to determine the ethical guidelines to which they will or will not adhere; however, the foundation of all ethical consideration is not the needs of the individual but the moral considerations of right and wrong behavior.

Receipt of public goods and services entails a certain obligation based on fairness to contribute to society. It is considered a matter of duty. From the utilitarian view, all action is either approved or disapproved by the norms of society. Consequences are defined as to the effect such behaviors have on the 'happiness' or continued 'health' of the society. It is inherent to human nature to be disinclined to analyze the experience of happiness, accepting only that it is a natural tendency to seek the 'feeling' of happiness and that changing the nature of behavior gives rise to a fear that happiness will not be forthcoming. There is also a sense of gratitude inherent in the receipt of goods and services wherein each citizen has an obligation not to act contrary to the state's interests. This means abiding by the laws.

Utilitarian goals consist of satisfaction of interest, needs, and/or rights of all involved. Unlike retribution theory, the process involved in utilitarian theory is future oriented. That is, history is considered as a problem that must be overcome. The individual is sanctioned as a way to empower them to return to the society. Incarceration is geared toward rehabilitation and the time is set according to the length of time needed for the process of rehabilitation. Von Hirsch sees the 'just desert' form of sentencing as being justified as both retribution and as a deterrent. Utilitarianism views penal action as either rehabilitative and, or, as a deterrent.

A rehabilitative stance tends to shift attention from the actual criminal behavior to his or her lifestyle or social/moral character. The just desert form of sentencing focuses on the behavior. The punishment is in keeping with the lev4el of crime and as a direct result of the crime. With this method there are standardized limits to incarceration, based on the type and recurrence. The just desert form of sentencing is more aligned with the concept of fairness as it pertains to discriminatory practices because of the standardization, which does not have a bearing on a utilitarian form such as rehabilitation or deterrence.

These forms have been advocated on the premise of proportionality of sentence. Von Hirsh's 'just desert' program would require the severity of the sentence to mirror the degree of reproachable response. It seems that this would entail a great deal of interpretation of social norms and would be biased as to the lawmakers themselves. It seems that each person has a different perspective, a slightly different definition of themselves and their world. The shared meaning of social definitions is merely a foundation for the expansion of thought. Culture is seen, not an entity, but as a complex social process. Strengths that are culturally derived are often overlooked when they appear to be outside of the accepted norm.

Humans basically live in two worlds, the one that exists within the realm of human interaction and the one that is experienced by the individual. Both worlds are defined and understood in terms of meanings the individual assigns to the interpretation. The transition from the world to the interpretation often means that elements are misconstrued or lost. They are then subject to eventual revision or replacement. Just deserts allows for an impartial standard in which the objective view states facts, rather than beliefs and, or, observations.

People change, cultures interact and the world becomes more aware of the etiology of certain deviancy, causing the level of tolerance…[continue]

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