Deserting Desert? Locating the Present Role of Retributivism in the Sentencing of Adult Offenders

Abstract

Abstract: Academic literature has generally claimed that the importance of desert has been reduced dramatically over the past decade and now plays a minimal role in the sentencing of adult offenders. Whilst an initial reading of the Criminal Justice Act 2003 would support such a view, it will be shown that the Act preserves some very important retributive concepts. In addition, guidance from the Sentencing Guidelines Council, established by the 2003 Act, has concentrated on issues of harm and culpability, again suggesting that notions of desert remain highly important. Commentators have also maintained that provisions in the 2003 Act which allow sentencers to have regard to any relevant previous convictions in determining the seriousness of an offence demonstrate a retreat from desert. This claim will be analysed with reference to the extent that theories of desert can accommodate previous convictions. It will be concluded that, despite some significant changes to sentencing policy, desert retains a central role in the sentencing of adult offenders.