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OUP UNCORRECTED PROOF – REVISES, Thu Jul 27 2017, NEWGEN Sentencing Multiple Crimes Keijser170317ATUS_MSC_Book.indb 1 8/10/2017 10:07:37 PM OUP UNCORRECTED PROOF – REVISES, Thu Jul 27 2017, NEWGEN Recent Titles in Studies in Penal Theory and Philosophy R.A. Duff, Michael Tonry, General Editors Popular Punishment On the Normative Significance of Public Opinion Jesper Ryberg and Julian V. Roberts Just Sentencing Principles and Procedures for a Workable System Richard S. Frase Punishment, Participatory Democracy, and the Jury Albert W. Dzur Retributivism Has a Past Has It a Future? Edited by Michael Tonry Taming the Presumption of Innocence Richard Lippke Sentencing Multiple Crimes Edited by Jesper Ryberg, Julian V. Roberts and Jan W. de Keijser Keijser170317ATUS_MSC_Book.indb 2 8/10/2017 10:07:37 PM OUP UNCORRECTED PROOF – REVISES, Thu Jul 27 2017, NEWGEN Sentencing Multiple Crimes EDITED BY JESPER RYBERG JULIAN V. ROBERTS JAN W. DE KEIJSER 1 Keijser170317ATUS_MSC_Book.indb 3 8/10/2017 10:07:37 PM OUP UNCORRECTED PROOF – REVISES, Thu Jul 27 2017, NEWGEN 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2018 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. CIP data is on file at the Library of Congress ISBN 978– 0– 19– 060760– 9 1 3 5 7 9 8 6 4 2 Printed by Sheridan Books, Inc., United States of America Keijser170317ATUS_MSC_Book.indb 4 8/10/2017 10:07:37 PM OUP UNCORRECTED PROOF – REVISES, Thu Jul 27 2017, NEWGEN CONTENTS Acknowledgments vii List of Contributors ix 1. Sentencing the Multiple Offender: Setting the Stage 1 Julian V. Roberts, Jesper Ryberg, and Jan W. de Keijser 2. Retributivism, Multiple Offending, and Overall Proportionality 13 Jesper Ryberg 3. Exploring an Institutionalist and Post- Desert Theoretical Approach to Multiple- Offense Sentencing 31 Anthony Bottoms 4. Retributivism and Totality: Can Bulk Discounts for Multiple Offending Fit the Crime? 57 Christopher Bennett 5. Multiple- Offense Sentencing Discounts: Score One for Hybrid Accounts of Punishment 75 Zachary Hoskins 6. Parsimony and the Sentencing of Multiple Offenders 95 Richard L. Lippke 7. Multiple Offenders and the Question of Desert 113 Youngjae Lee v Keijser170317ATUS_MSC_Book.indb 5 8/10/2017 10:07:37 PM OUP UNCORRECTED PROOF – REVISES, Thu Jul 27 2017, NEWGEN vi Contents 8. Sentencing the Multiple- Conviction Offender: Diminished Culpability for Related Criminal Conduct 137 Julian V. Roberts and Jan W. de Keijser 9. Toward a Theoretical and Practical Model for Multiple- Offense Sentencing 163 Natalia Vibla 10. Multiple- Offense Sentencing: Some Additional Thoughts 183 Andreas von Hirsch 11. Principles and Procedures for Sentencing of Multiple Current Offenses 189 Richard S. Frase 12. Sentencing the Multiple Offender: In Search of a “Just and Proportionate” Total Sentence 211 Andrew Ashworth and Martin Wasik 13. Multiple- Offense Sentencing: Looking for Pragmatism, Not a Unifying Principle 225 Allan Manson 14. Solving the Multiple- Offense Paradox 241 Michael Tonry Index 267 Keijser170317ATUS_MSC_Book.indb 6 8/10/2017 10:07:37 PM OUP UNCORRECTED PROOF – REVISES, Thu Jul 27 2017, NEWGEN ACKNOWLEDGMENTS The chapters in this volume are the result of an international seminar held at the Social Sciences Building, University of Oxford, December 10– 12, 2015. Financial support for the seminar was generously provided by the Centre for Penal Ethics at the University of Cambridge; Roskilde University; the Institute for Criminal Law and Criminology at Leiden University; the Faculty of Law, University of Oxford; and the Centre of Criminology, University of Oxford. Our thanks to all the participants at the Oxford seminar for their valuable contribu- tions to the discussions. We are very grateful to Dr. Gabrielle Watson for edito- rial and research assistance, and to James Cook from Oxford University Press for his support of the project. Oxford, October 15, 2016 Jesper Ryberg Julian V. Roberts Jan W. de Keijser vii Keijser170317ATUS_MSC_Book.indb 7 8/10/2017 10:07:37 PM OUP UNCORRECTED PROOF – REVISES, Thu Jul 27 2017, NEWGEN Keijser170317ATUS_MSC_Book.indb 8 8/10/2017 10:07:37 PM OUP UNCORRECTED PROOF – REVISES, Thu Jul 27 2017, NEWGEN CONTRIBUTORS Andrew Ashworth is Vinerian Professor of English Law Emeritus in the University of Oxford, and Adjunct Professor of Law at the University of Tasmania. Christopher Bennett is Reader in the Department of Philosophy, University of Sheffield. Anthony Bottoms is Emeritus Wolfson Professor of Criminology at the University of Cambridge; Life Fellow of Fitzwilliam College, Cambridge; Honorary Professor of Criminology at the University of Sheffield; and Codirector of the Centre for Penal Theory and Penal Ethics, Institute of Criminology, University of Cambridge. Jan W. de Keijser is Professor of Criminology at the Institute for Criminal Law and Criminology, Leiden University. Richard S. Frase is Benjamin N. Berger Professor of Criminal Law at the University of Minnesota Law School and Codirector of the Robina Institute of Criminal Law and Criminal Justice, University of Minnesota. Zachary Hoskins is Assistant Professor in the Faculty of Philosophy at the University of Nottingham. Youngjae Lee is Professor of Law at Fordham University. Richard L. Lippke is Professor of Criminal Justice and Department Chair in Criminal Justice at Indiana University Bloomington. Allan Manson is Professor of Law in the Faculty of Law, Queen’s University. Julian V. Roberts is Professor of Criminology at the University of Oxford; Fellow of Worcester College, Oxford; and member of the Sentencing Council of England and Wales. ix Keijser170317ATUS_MSC_Book.indb 9 8/10/2017 10:07:38 PM OUP UNCORRECTED PROOF – REVISES, Thu Jul 27 2017, NEWGEN x Contributors Jesper Ryberg is Professor of Ethics and Philosophy of Law at Roskilde University. Michael Tonry is McKnight Presidential Professor in Criminal Law and Policy and Director of the Institute on Crime and Public Policy at the University of Minnesota and a Scientific Member of the Max Planck Society. Natalia Vibla is a Lecturer in Criminology, Liverpool Hope University. Andreas von Hirsch is Emeritus Honorary Professor of Penal Theory and Penal Law at the University of Cambridge; Director of the Centre for Penal Theory and Penal Ethics, Institute of Criminology, University of Cambridge; Honorary Fellow of Wolfson College, Cambridge; Honorary Professor of Penal Law, Faculty of Law at Goethe University Frankfurt; and Director, Forschungsstelle für Strafrechtstheorie und Strafrechtsethik, Law Faculty, Goethe University Frankfurt. Martin Wasik is Emeritus Professor of Criminal Justice in the School of Law, Keele University. Keijser170317ATUS_MSC_Book.indb 10 8/10/2017 10:07:38 PM OUP UNCORRECTED PROOF – REVISES, Thu Aug 10 2017, NEWGEN 1 Sentencing the Multiple Offender Setting the Stage Julian V. Roberts, Jesper Ryberg, and Jan W. de Keijser Most people’s image of a sentencing hearing involves an offender being sen- tenced for a single crime. Questions about legal punishment are framed from this perspective: What is an appropriate sentence for a crime of this seriousness, committed by an offender with this level of culpability? If custody is appropriate, how much time in prison does the offender deserve for this offense? These questions are far from easy to answer, yet the sentencing exercise is even more complicated when the offender stands convicted of multiple crimes. These may be multiple counts of the same offense (a series of burglaries or thefts) or they may be a constellation of diverse crimes (two burglaries, an assault, possession of stolen property and possession of a weapon). It is hard to know the exact volume of such cases, as the question has attracted little empiri- cal research. However, in England and Wales, the Sentencing Council has esti- mated that approximately 40% of sentencing decisions involved multiple crimes. Michael Tonry (this volume) provides data showing comparable trends in the United States. Can the approach to sentencing single crimes be directly applied to multiple count cases? Not easily. Transposing the logic of single- offense sen- tencing— assigning a specific sentence for each crime independent of the other, and cumulating the total sentences— creates a number of problems. Although sentencing systems around the world pursue multiple objectives, the retributive principle of proportionality is common to almost all. A court sen- tencing under a retributive rationale imposes a sanction commensurate with the seriousness of the crime and the offender’s culpability. Offenses of differing seri- ousness will attract different sentences: more
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