Temptations, Social Deprivation and Punishment

Andrew von Hirsch and Andrew Ashworth recently argued that there is generally a reason to punish a socially deprived offender less than his non-deprived counterpart (ie someone who is not socially deprived but is otherwise similar to the deprived offender in that he committed the same crime, caused the same harm, with the same degree of foresight, etc), because deprived offenders generally face stronger temptations to offend than their non-deprived counterparts. In reply, I will argue that we should draw a distinction between (i) facing stronger temptations to offend when one offended and (ii) acting on stronger temptations in offending. The distinction is analogous to Antony Duff’s distinction between having a reason for an action and acting on/for that reason. After drawing the distinction, I will argue that while acting on stronger temptations in offending should be a mitigating factor, facing stronger temptations to offend per se should not be a mitigating factor. Moreover, I will argue that since it is not true that deprived offenders generally act on stronger temptations in offending, social deprivation cannot be defended as a general mitigating plea on the basis that deprived offenders generally act on stronger temptations in offending