Sanctions and Severity: To the Demise of Von Hirsch and Wasik's Sanction Hierarchy

Abstract

The sanction hierarchy as a device for promoting proportionality is an idea entrenched in English sentencing. It is founded on the work of Von Hirsch and Wasik. This article challenges their view. There are three aspects of severity: punitive, correctional and functional severity. The first concerns proportionality between offence seriousness and sanction severity and raises the problem of scaling the quantum of punishment. The sanction hierarchy is not suited to this and, indeed, may have facilitated disproportionate sentencing. Rather, what is required is the concept of the exchange rate. Scaling in regard to the second and third aspects aims to ensure that the proportionate punishment is by way of the most humane and correctionally efficacious sanction and meets, where relevant, subsidiary functions of sentencing such as denunciation. Scaling here is about the type of sanction. For this the sanction hierarchy is suited, but these two aspects of severity are ignored by Von Hirsch and Wasik. The second task of this article is to propose a structure for scaling sanction severity and providing for individualisation of sentence with respect to the offence and offender within a desert framework. This builds on the previous ideas of Morris and Tonry.