Prisons, Proportionality and Recent Penal History

• Published in: Modern law review 2017-05, Vol.80 (3), p.473-488
• Main Author: Ashworth, Andrew
• Format: Article
• Language: English
• Subjects: Proportionality – ‘just deserts’ – retributive revival – deterrence – ‘prison works’ – incapacitation – sentencing guidelines – penal moderation – ‘drowning out’ – human rights – decrementalism – severity
• ISSN: 0026-7961; 1468-2230
• DOI: 10.1111/1468-2230.12266

A leading aim of the Criminal Justice Act 1991 was to install the principle of proportionality 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 article 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 proportionality 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.