Thanks to Cora Chan, Henry Chan, Joseph Chan, Frank Choi, John Gardner, Lusina Ho, Eric Ip, Joe Lau, Kerby Lau, Paddy Law, Chris Lewis, Hannah Maslen, Daniel McDermott, Simon Young, an anonymous reviewer and an anonymous student editor for comments. I have presented this paper in a Law Faculty staff seminar at the University of Hong Kong where I received very helpful suggestions and questions. I am grateful to the Swire Educational Trust for its financial support.

1. Canada comes closest to recognising poverty as a mitigating factor. See R v Gladue, [1999] 1 SCR 688;Google ScholarPubMed R v Hamilton and Mason (2004), 186 CCC (3d) 129 (ONCA)Google Scholar; R v Borde (2003), 172 C.C.C. (3d) 225 (ONCA).Google Scholar The main difference between my position (to be elaborated and defended) and the Canadian legal position is that my position does not require a causal connection between poverty and crime. See also the provisions referring to cultural background in sentencing in New Zealand Sentencing Act 2002, 2002, as discussed in Roberts, Julian, “Sentencing Reform in New Zealand: An Analysis of Sentencing Act 2002” (2003) 36(3) Australian & New Zealand J Criminology 249.CrossRefGoogle Scholar

2. This type of argument can be found in, amongst others, the following works: von Hirsch, Andrew & Ashworth, Andrew, Proportionate Sentencing: Exploring the Principles (Oxford: Oxford University Press, 2005) [von Hirsch & Ashworth] at ch 5;CrossRefGoogle Scholar Hudson, Barbara, “Beyond Proportionate Punishment: Difficult Cases and the 1991 Criminal Justice Act” (1994) 22(1) Crime, L & Soc Change 59 at 69-72CrossRefGoogle Scholar; Lippke, Richard, Rethinking Imprisonment (Oxford: Oxford University Press, 2007) [Lippke] at 84–88.CrossRefGoogle Scholar It should be noted that some of these authors have doubts as to whether poverty should be a mitigating factor, all things considered, given the practical difficulties.

3. For doubts as to whether variations in strength of temptations, without affecting motivation, should be relevant to sentencing, see Chau, Peter, “Temptations, Social Deprivation, and Punishment” (2010) 30(4) Oxford J Legal Stud 775.CrossRefGoogle Scholar

4. This type of argument can be found in, amongst others, Delgado, Richard, “Rotten Social Background: Should the Law Recognize a Defense of Severe Environmental Deprivation?” (1985) 3 L & Inequality 9 Google Scholar, discussed in, amongst others, Heffernan, William, “?Social Justice/Criminal Justice” in Heffernan, William & Kleinig, John, eds, From Social Justice to Criminal Justice (Oxford: Oxford University Press, 2000) 47 at 68-72;Google Scholar Morse, Stephen, “Deprivation and Desert” in Heffernan, William & Kleinig, John, eds, From Social Justice to Criminal Justice (Oxford: Oxford University Press, 2000) 114 [Morse] at 143-50.Google Scholar

5. Beyond these brief statements about “undeserved” poverty, I will not discuss in greater detail when exactly is poverty undeserved. The reason for not discussing this question further is given in the Conclusion section.

6. These attempts were made by Jeffrie Murphy, Antony Duff, and Gertrude Ezorsky. Their arguments are different from mine. I will contrast my argument with Murphy’s in the main text of this section. Duff’s argument is different from mine as my argument focuses exclusively on hard treatment, and does not call into question the state’s standing to blame. (For the distinction between the blame component in punishment and the hard treatment component in punishment, see Feinberg, Joel, “The Expressive Function of Punishment” in Feinberg, Joel, ed, Doing & Deserving (Princeton, NJ: Princeton University Press, 1970) 95.Google Scholar) Ezorsky’s argument is different from mine as my argument focuses on the idea of distributive justice, not the idea of whole life criminal desert. For Duff’s argument, see Duff, Antony, Punishment, Communication and Community (Oxford: Oxford University Press, 2001) at 179–201;Google Scholar Duff, Antony, “Blame, Moral Standing, and the Legitimacy of the Criminal Trial” (2010) 23(2) Ratio 123.CrossRefGoogle Scholar For Ezorsky’s argument, see Ezorsky, Gertrude, “The Ethics of Punishment” in Ezorsky, Gertrude, ed, Perspectives on Punishment (Albany: State University of New York Press, 1977) xi at xxii-xxvii.Google Scholar

7. Murphy, Jeffrie, “Marxism and Retribution” in Duff, Antony & Garland, David, eds, A Reader on Punishment (Oxford: Oxford University Press, 1994) 47 [Murphy].Google Scholar

8. I am playing fast and loose here regarding what counts as a “justification of punishment”, since theories providing positive reasons for punishment may be different from theories providing rights for punishment. For the distinction, see David Dolinko’s distinction between “rational justification” and “moral justification” in Dolinko, David, “Some Thoughts about Retributivism” (1991) 101(3) Ethics 537 at 539-41.CrossRefGoogle Scholar Nonetheless, the distinction between the two kinds of justification will not be very important for my purpose here.

9. Murphy, supra note 7 at 50-55.

10. For expression of similar ideas, see Sadurski, Wojciech, “Theories of Punishment, Social Justice, and Liberal Neutrality” (1988-89) 7(3) Law & Phil 351 CrossRefGoogle Scholar; Hudson, Barbara, Penal Policy and Social Justice (London: Macmillan Press, 1993) [Hudson] at 12–16.CrossRefGoogle Scholar

To be fair to Murphy, while the conclusion I draw from his discussion on distributive justice and punishment is natural, it is not clear whether he draws this conclusion rather than the conclusion that we should abolish the institution of punishment altogether. So perhaps it is more accurate to label the argument I discuss in this section as a Murphyian argument rather than Murphy’s argument.

11. Odudu, Okeoghene, “Retributive Justice in an Unjust Society” (2003) 16(3) Ratio Juris 416 at 419.CrossRefGoogle Scholar

12. Ibid.

13. Hart, HLA, Punishment and Responsibility, 2nd ed (Oxford: Oxford University Press, 2007) at 8–13.Google Scholar

14. For example, Roberts and Stenning implicitly accept that idea as they claim that distributive justice should not be relevant to punishment because it is not one of the purposes of punishment. Roberts, Julian and Stenning, Philip, “The Sentencing of Aboriginal Offenders in Canada: A Rejoinder” (2002) 65(1) Sask L Rev 75 at 90-91.Google Scholar

15. It may be worthwhile to clarify what my position, that distributive justice is relevant to distribution of punishment, is consistent with and what my position would conflict with. My position does not take a stance as to what provides (and what does not provide) reasons or rights to punish, and hence, is consistent with all views about what justifies punishment or what are the purposes of punishment. My position, however takes a stance as to what is relevant to the distribution of punishment, and thus, is inconsistent with some views about what are the relevant considerations that we should take into account in sentencing. I thank one anonymous reviewer for asking me to clarify this point.

16. This is not controversial. More controversial is whether distributive justice concerns more than distribution of socio-economic goods, a question which I will not settle in this paper. Interested readers can consult, e.g., Cohen, GA, “On the Currency of Egalitarian Justice” (1989) 99(4) Ethics 906 [Cohen].CrossRefGoogle Scholar

17. Contemporary literature on distributive justice is huge. As a starting point, see Rawls, John, A Theory of Justice, revised ed (Oxford: Oxford University Press, 1999)Google Scholar; Cohen, supra note 16; Dworkin, Ronald, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2002)Google Scholar; Frankfurt, Harry, “Equality as a Moral Ideal” (1987) 98 Ethics 21.CrossRefGoogle Scholar

18. It is arguable that even a libertarian like Robert Nozick would agree with me that poor people, as they currently exist in our society, should deserve compensation, as there is no reason to believe that the current distribution of social goods satisfies even libertarian principles of justice. See Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974) at 230–31;Google Scholar Kymlicka, Will, Contemporary Political Philosophy, 2nd ed (Oxford: Oxford University Press, 2002) at 111–13.Google Scholar

19. See, e.g., the empirical studies discussed in von Hirsch, Andrew, Ashworth, Andrew & Roberts, Julian, eds, Principled Sentencing, 3rd ed (Oxford: Hart, 2009) [von Hirsch, Ashworth & Roberts] at 44–45.Google Scholar

20. That is not to deny that some forms of criminal sentence can serve rehabilitative purpose for some limited groups of offenders (ibid). I am, instead, denying the following two claims: (1) prisons will have much rehabilitative effect for most offenders and (2) the rehabilitative effect of sentence will be substantially affected by the severity (rather than form) of the sentence.

21. Barbara Hudson made a similar point in Hudson, supra note 10 at 15.

22. A similar point against a slightly different proposal can be found in Parent, WD, “The Whole Life View of Criminal Desert” (1976) 86(4) Ethics 350 at 353.CrossRefGoogle Scholar

23. This point is essentially made by Alan Norrie in Norrie, Alan, “From Criminal Law to Legal Theory: The Mysterious Case of the Reasonable Glue Sniffer” (2002) 65(4) Modern L Rev 538 at 544 n 29.CrossRefGoogle Scholar For expression of similar sentiments, see Carter, Mark, “Of Fairness and Faulkner” (2002) 65(1) Sask L Rev at 63.Google Scholar

24. von Hirsch, Andrew, Censure and Sanctions (Oxford: Oxford University Press, 1996) [von Hirsch] at 97–98, 108;CrossRefGoogle Scholar Brodeur, JP & Roberts, Julian, “Taking Justice Seriously” (2002) 7 Can Crim L Rev 77 at 91.Google Scholar

25. US Bureau of Justice Statistics, Prevalence of Imprisonment in the US population, 1974-2001 (Washington, DC: Government Publication Office, 2003).Google Scholar

26. Morse, supra note 4 at 152; Ross, WD, The Right and the Good (Oxford: Oxford University Press, 1930) at 60.Google Scholar This objection is also considered, and ultimately rejected, in Lippke, supra note 2 at 102.

27. Von Hirsch, Ashworth & Roberts, supra note 19 at 43-46; Ashworth, Andrew, Sentencing and Criminal Justice, 5th ed (Cambridge: Cambridge University Press, 2010) [Ashworth] at 22, 80-81.CrossRefGoogle Scholar

28. Ibid.

29. Von Hirsch & Ashworth, supra note 2 at 70-71.

30. Ryberg, Jasper, The Ethics of Proportionate Punishment (Netherlands: Kluwer Academic, 2004) [Ryberg] at ch 1.Google Scholar

31. I echo Michael Tonry’s position on this point. See Tonry, Michael, “Proportionality, Parsimony, and Interchangeability of Punishments” in Duff, Antony & Garland, David, eds, A Reader on Punishment (Oxford: Oxford University Press, 1994) 136 at 142.Google Scholar See also Roach, Kent & Rudins, Jonathan, “Broken Promises: A Response to Stenning and Roberts’ ‘Empty Promises’” (2002) 65(1) Sask L Rev 3.Google Scholar

It is unclear though how absolute defenders of the principle of proportionality consider that principle to be. See von Hirsch, supra note 24 at 47-56; von Hirsch, Andrew, “Sentencing Reform” in Duff, Antony, Marshall, Sandra, Dobash, Rebecca & Dobash, Russell, eds, Penal Theory and Practice (Manchester: Manchester University Press, 1994) 27 at 32.Google Scholar

32. Von Hirsch, supra note 24 at 15, 25.

33. In fact, as a separate matter, one may wonder whether one can defend proportionality at all by appealing to the expressive component of punishment. I doubt, as many do, if gravity of punishment must express the state’s judgment about the seriousness of crimes. Imagine that the following statement is issued as the judge takes into account considerations about distributive justice in deciding the gravity of punishment: “This defendant’s crime is horrible. If he comes from a normal background I would sentence him to prison for 10 years. But this offender is a poor person who has suffered a lot in the past. Because of reasons of distributive justice, I now discount 3 years.” I think that it is false to say that in such a case, the state has sent out the wrong message about the relative seriousness of the crime, just because the hard treatment inflicted has been varied.

34. Here I am agreeing with Ryberg. See Ryberg, supra note 30 at 48.

35. I suppose here that right is a broader notion than interest, such that one can wrong another person, therefore infringing his right, without harming his interest. See Gardner, John & Shute, Stephen, “The Wrongness of Rape” in Horder, Jeremy, ed, Oxford Essays in Jurisprudence: Fourth Series (Oxford: Clarendon Press, 2000) at ch 10.Google Scholar

36. The guilty plea is recognized all around common law jurisdictions. For England, see Criminal Justice Act 2003, 2003, s. 114.

37. To be fair, some prominent writers, like Andrew Ashworth, seem to have doubts about whether we should recognize this plea. See Ashworth, supra note 27 at 178-80. But his reasons for rejecting the guilty plea have nothing to do with proportionality and thus are not directly relevant here.

38. Lippke, supra note 2 at 99.

39. Von Hirsch & Ashworth, supra note 2 at 71-72.

40. Von Hirsch, supra note 24 at 108; von Hirsch & Ashworth, supra note 2 at 72.

41. There are other ways of drawing the distinction between ideal and non-ideal theories. For a recent discussion, see John Simmons, A, “Ideal and Non-ideal Theory” (2010) 38(1) Phil & Pub Affairs 5.CrossRefGoogle Scholar

42. Unless we assume the administrative cost of implementing my proposal is huge, which I have given reasons to doubt in section 4.2 above.

43. Though, as Ashworth correctly reminded us, the effect of reduction in prison population caused by sentencing reform should not be overestimated, given that sentencing is only one out of the many parts of the penal system. Ashworth, supra note 27 at 22.

44. My defence against the charge of political infeasibility in the text tries to argue that my proposal is more acceptable to the legislature than a comprehensive welfare reform (and hence, more politically feasible). In addition, it can be said, in my favor, that my proposal is more likely than a comprehensive welfare reform to be implemented by sentencing judges, and hence, is more politically feasible than a comprehensive welfare reform in another respect. I thank an anonymous reviewer for raising this point.

45. For the English authorities on this position, see the cases referred to in Thomas, DA, Current Sentencing Practice (London: Sweet and Maxwell, 2010) at part C4.Google Scholar

46. This is an analogous problem to the one raised in von Hirsch, supra note 24 at 108.

47. Von Hirsch raised the “fairness-effectiveness dilemma” against the view that a limited degree of deviation from proportionality is justified for crime-reduction. (Von Hirsch, supra note 24 at 55; von Hirsch and Ashworth, supra note 2 at 162.) It may seem that an analogous objection can be raised against my proposal and I avoided that problem only because I omit the issue of extent, so it may be worthwhile to consider that dilemma here.

The dilemma posed by von Hirsch, modified to apply in my context, is this: If the extent of mitigation we allow is low, then the amount of distributive justice resultant through implementing my proposal would be low. On the other hand, if the level of mitigation we allow is high, then it will result in great compromise of proportionality. So both levels of mitigation (low or high) are not preferable to the status quo (no mitigation).

But I think this argument looks plausible only if we look at just one side of the picture, and once we have looked at both sides of the picture this argument can be turned head on against von Hirsch. Why should we not say: If the level of mitigation we allow is low, then we only compromise a little bit of proportionality, so it is easy to justify; and if the level of mitigation we allow is high, then the amount of distributive justice brought about is high, so it is a good idea? As such, both levels of mitigation are preferable to the status quo.

In general, when two considerations (proportionality and distributive justice in our case) pull in opposite directions, there seems to be no a priori reason to think that the correct point of balance between the values must be the one which gives lexical priority to one value (proportionality according to von Hirsch).