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Second, for those who do commit crimes and are subjected to punishment, the threat of future punishment namely, the prospect of having to experience prison again, or pay further fines, and so forth might provide a disincentive to reoffending. This is typically referred to as specific or special deterrence. Punishment might also help to reduce crime by incapacitating criminals. Unlike deterrence, incapacitation does not operate by dissuading potential offenders.

Incapacitation instead aims to remove dangerous people from situations in which they could commit crimes. Imprisoning someone in a solitary confinement unit, for instance, may or may not convince her not to commit crimes in the future; but while she is locked up, she will be unable to commit most crimes. A third way in which punishment might help to reduce crime is by encouraging or facilitating offender reform.

The aim of reform is like that of specific deterrence in one respect: That is, the aim for both is that she should choose not to reoffend. But reform differs from specific deterrence in terms of the ways in which each seeks to induce different choices. Punishment aimed at specific deterrence provides prudential reasons: Each of these aims—deterrence, incapacitation, and reform—will have distinct implications with respect to sentencing. Punishment aimed at reducing crime through deterrence would in general need to be severe enough to provide members of the public with a significant incentive not to offend, or to provide offenders with an incentive not to reoffend.

Also, as Bentham explained, the severity of sentences should reflect the relative seriousness of the crimes punished Bentham, More serious crimes should receive more severe punishments than do less serious crimes, so that prospective offenders, if they are going to commit one crime or the other, will have an incentive to choose the less serious crime. For punishment aimed at reducing crime through incapacitation, sentences should be restrictive enough that dangerous offenders will be unable to victimize others so, for instance, prison appears generally preferable to fines as a form of incapacitative punishment.

In terms of duration, incapacitative sentences should last as long as the offender poses a genuine threat. Similarly, sentences aimed at reducing crime through offender reform should be tailored, in terms of the form, severity, and duration of punishment, in whatever ways are determined to be most conducive to this aim. Thus whether she endorses deterrence, incapacitation, reform, or some other aim or a combination of these , the consequentialist should also endorse a parsimony constraint on sentence severity Tonry, Typical consequentialist accounts of punishment contend that the practice is justified because it produces, on balance, positive consequences by helping to reduce crime, either through deterrence, incapacitation, or offender reform.

Critics have objected to such consequentialist accounts on a number of grounds. First, some have objected to deterrence accounts on grounds that punishment does not actually deter potential offenders. A key worry is that often perhaps typically those who commit crimes act impulsively or irrationally, rather than as efficient calculators of expected utility, and so they are not responsive to the threat of punishment. The question of whether punishment deters is an empirical one, and criminological studies on this question have come to different conclusions.

In general, evidence seems to indicate that punishment does have some deterrent effect, but that the certainty of apprehension plays a greater deterrent role than does the severity of punishment Nagin, A similar line of objection has been raised against reform-based accounts of punishment. More recent criminological work, however, has generated somewhat more optimism about the prospects for offender reform Cullen, Whereas critics have questioned whether punishment deters or facilitates offender reform, there is little doubt that punishment—especially incarceration—incapacitates prisoners may still have opportunities to commit crimes, but their opportunities are at least significantly limited.

Critics have raised questions, however, about the link between incapacitation and crime reduction. For punishment to be justified on incapacitative grounds, after all, it would need to be the case not only that punishment in fact incapacitates, but that in so doing it helps to reduce crime. At least in some cases, there is reason to doubt whether the link between incapacitation and crime reduction holds.

Most notably, locking up drug dealers or gang members does not appear to decrease drug- or gang-related crimes, because the incapacitated person is quickly and easily replaced by someone else Tonry, The costs of punishment are not limited to the suffering or other burdens inflicted on offenders, although these burdens do matter from a consequentialist perspective.

These costs matter in consequentialist calculations. In addition, we must consider the financial costs of maintaining an institution of criminal punishment. In , the Vera Institute of Justice released a study of 40 U. Thus defenders of punishment on consequentialist grounds must show not only that punishment is beneficial, but also that its benefits are significant enough to outweigh its costs to offenders and to society generally. If there are alternatives to punishment that are equally effective in reducing crime but are less costly overall, then from a consequentialist perspective, these alternatives would be preferable Boonin, Suppose, however, that the benefits of punishment outweigh its harms and also that there are no alternatives to punishment that generate, on balance, better overall consequences.

In this case, punishment would be justified from a consequentialist perspective. Many theorists, however, do not endorse consequentialism. Indeed, the most prominent philosophical objections to consequentialist accounts of punishment take aim specifically at supposed deficiencies of consequentialism itself. Perhaps the most common objection to consequentialist accounts is that they are unable to provide principled grounds for ruling out punishment of the innocent. If there were ever a situation in which punishing an innocent person would promote the best consequences, then consequentialism appears committed to doing so.

McCloskey imagines a case in which, in the wake of a heinous crime, a small-town sheriff must decide whether to frame and punish a person whom the townspeople believe to be guilty but the sheriff knows is innocent if doing so is the only way to prevent rioting by the townspeople McCloskey, But knowingly punishing an innocent person strikes most of us as deeply unjust. Consequentialists have responded to this objection in various ways. Setting terminology aside, the relevant questions are whether and why it is permissible to impose intended, condemnatory burdens on those believed to be guilty of crimes.

Such a practice would strike many as morally wrong, however. Thus the objection arises for consequentialists regardless of definitions. Others have responded to the objection that consequentialism would allow for punishing the innocent by suggesting that scenarios such as McCloskey suggests are so far-fetched that they are unlikely to occur in the real world. In actual cases, punishing the innocent will rarely, if ever, produce the best consequences. For instance, some contend that the sheriff in the example would likely be found out, and as a result the public would lose its trust in law enforcement officials; the long-term consequences, therefore, would be worse than if the sheriff had not punished the innocent person.

As critics have pointed out, however, this response only shows that punishing the innocent will usually be ruled out by consequentialism. There might still be cases, albeit rare, in which punishing the innocent would generate the best consequences maybe the sheriff is adept at covering up his act. At best, then, consequentialism seems only able to ground a contingent prohibition on punishing the innocent. Some consequentialists have accepted this implication, albeit reluctantly see Smart, On this view, it is morally wrong to subject those guilty of relatively minor crimes to harsh punishment; such punishment would be excessive.

For consequentialist accounts, though, it appears that excessively harsh sentences would be permitted indeed, required if they produced the best overall consequences. Jeremy Bentham contended that consequentialism does have the resources to ground relative proportionality in sentencing—that is, lesser offenses should receive less severe sentences than more serious offenses receive.

His reasoning was that if sentences for minor offenses were as harsh as for more serious offenses, potential offenders would have no incentive to commit the lesser offense rather than the more serious one Bentham, If Bentham is right, then there is a consequentialist basis for punishing shoplifters, for instance, less harshly than armed robbers. But this does not rule out punishing shoplifters harshly more harshly than most of us would think justified and punishing armed robbers even more harshly; again, a consequentialist would seem committed to such a sentencing scheme if it promoted the best overall consequences.

Defenders of consequentialist sentencing have another response available, namely that excessively harsh sentences do not, in practice, produce the best consequences. This sort of response, of course, makes the prohibition of disproportionate punishment a contingent matter; in other words, if extremely harsh sentences did help to reduce crime and this produced, on balance, the best overall consequences, then consequentialism would appear to endorse such sentences.

Critics thus charge that consequentialist accounts are unappealing insofar as they are unable to ground more than a contingent prohibition on disproportionately harsh punishment. Even if we prohibit punishment of the innocent or disproportionate punishment of the guilty, a third, Kantian objection holds that consequentialist punishment is not properly responsive to the person being punished. According to this objection, to punish offenders as a means to securing some valuable social end namely, crime reduction is to use them as mere means, rather than respecting them as ends in themselves Kant, In response to this objection, some scholars have contended that although consequentialists regard punishment as a means to an end, punishment does not treat offenders as mere means to this end.

If we limit punishment to those who have been found guilty of crimes, then this treatment is arguably responsive to their choices and does not use them as mere means. Kant himself suggested that as long as we reserve punishment only for those found guilty of crimes, then it is permissible to punish with an eye toward potential benefits Kant, A more recent objection to consequentialist systems of punishment, developed by R. Such a conception of the criminal law is inappropriately exclusionary, Duff claims.

The criminal law, and the institution of punishment, in a liberal polity should treat offenders inclusively, as still members of the community who despite having violated its values could, and should, nevertheless re commit to these values. In response, one might object that systems of punishment aimed at crime reduction need not be exclusionary in the way Duff suggests.

In particular, punishment that aims to deter crime might be said to treat all community members equally, namely as potential offenders. For those who have not committed crimes, deterrent punishment regards them as potential offenders and aims to provide an incentive not to offend that is, general deterrence. For those who have committed crimes, deterrent punishment similarly regards them as potential re offenders and aims to provide an incentive not to re offend that is, specific deterrence. In this way, punishment with a deterrent aim might be said to speak to all community members in the same terms, and thus not to be objectionably exclusionary.

As we have seen, consequentialist accounts of punishment are essentially forward-looking—punishment is said to be justified in virtue of the consequences it helps to produce. A different sort of account regards punishment as justified not because of what it brings about, but instead because it is an intrinsically appropriate response to crime.

Accounts of the second sort have traditionally been described as retributivist. In general, we can say that retributivism views punishment as justified because it is deserved , although particular accounts differ about what exactly this means. Theorists have distinguished two varieties of retributivism: Negative retributivism, by contrast, provides a constraint on punishment: Because negative retributivism provides only a constraint on punishment, not a positive reason to punish, the negative retributive constraint has featured prominently in attempts at mixed accounts of punishment; such accounts allow punishment for consequentialist aims as long as the punishment is only of those who deserve it.

On the other hand, because negative retributivism does not provide a positive justifying reason to punish, some scholars argue that it does not properly count as retributivism at all. The distinction between retributivism and consequentialism is not always a neat one. Notice that one might endorse the claim that punishment is a deserved response to wrongdoing and then further assert that it is a valuable state of affairs when wrongdoers get the punishment they deserve—a state of affairs that therefore should be promoted.

On this type of account, retribution itself essentially becomes the consequentialist aim of punishment Moore, ; Zaibert, Nevertheless, in keeping with general practice, this article will treat retributivism as distinct from, and in competition with, consequentialist accounts. One common version of retributivism contends simply that wrongdoers deserve to suffer in proportion to their wrongdoing. Often this claim is made by way of appeal to intuitions about particular, usually heinous crimes: Proponents argue that retributivism is justified because it best accounts for our intuitions about particular cases such as these Moore, ; Kleinig, Justifying retributivism requires more, of course, than merely appealing to common intuitions about such cases.

After all, even if many even most people do feel, in hearing reports of terrible crimes, that the perpetrators deserve to suffer, not everyone feels this way.

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And even those who do have such intuitions may not feel entirely comfortable with them. What we would like to know is whether the intuitions themselves are justified, or whether, for instance, they amount to an unhealthy desire for vengeance. Critics contend that those who rely on our intuitions about particular cases as evidence that retributivism is justified fail to provide the needed explanation of why the intuitions are justified. There are other questions for such a view: And why is meting out deserved suffering for wrongdoing properly the concern of the state? Another prominent type of retributivist account begins with a conception of society as a cooperative venture in which each member benefits when there is general compliance with the rules governing the venture.

Because each of us benefits when everyone else plays by the rules, fairness dictates that we each have an obligation to reciprocate by playing by the rules, too. A criminal, like other members of society, benefits from general compliance with laws, but she fails to reciprocate by complying with the laws herself.

She essentially becomes a free rider, because she counts on others to play by the rules that she violates. By failing to restrain herself appropriately, she gains an unfair advantage over others in society. The justification of punishment is that it corrects this unfair advantage by inflicting burdens on the offender proportionate to the benefit she gained by committing her crime Morris, On the fair play view, then, punishment is justified as a deserved response to an unfair advantage taken against members of society generally. The state has an interest in assuring those who accept the burdens of compliance with the law that they will not be at a disadvantage to those who would free-ride on the system.

Critics of the fair play view have argued that it provides a counterintuitive conception of the crime to which punishment responds. It seems strange, for instance, to think of the wrong perpetrated by, say, a rapist as a sort of free-riding wrong against society in general, rather than an egregious wrong perpetrated against the victim in particular.

In response to this charge, Dagger argues that crimes may be wrong in both senses: This retributivist account, developed most notably by R. Offenders deserve to be censured for what they have done, and punishment is justified because it delivers this censuring message. Duff understands crimes as public wrongs, as violations of important public values. Censuring involves, in part, urging an offender to think about the wrong she has done, to repent and re commit herself to the values that she has violated. But notice the crucial distinction between this sort of account and the variety of consequentialist account that aims at offender reform.

Although offender reform is an aim of punishment on the censure account, it is not a justifying aim. In other words, on the censure view, punishment is not justified insofar as it tends to promote offender reform. Rather, punishment is justified because it communicates deserved censure. Part of what it means to censure, however, is to urge wrongdoers to repent and reform.

A common critique of the censure view asks why punishment—that is, the imposition of intended burdens—is the proper way to censure wrongdoers. It seems that the polity could communicate messages of censure to offenders without imposing intended burdens; for example, it could issue a public proclamation condemning the crime and blaming the offender. Why, then, is the hard treatment characteristic of punishment an appropriate vehicle for conveying such messages?

Nonpunitive censure—blaming without imposing intended hard treatment—would fail to communicate the seriousness of the wrongdoing. Some have objected, however, that such an account implies too intrusive a role for the state. It is not a proper function of the state, critics charge, to seek to induce repentance and moral reform in offenders.

Thus even some scholars who agree that punishment is justified as a form of censure nevertheless disagree about the role of the hard treatment element. For Andrew von Hirsch , for instance, the intended burdens characteristic of punishment act as a sort of prudential supplement: Punishment, as hard treatment, also provides a prudential threat as a sort of supplement for those of us for whom the moral message is not sufficient. One worry with such an account, however, is whether the prudential threat will tend to drown out the moral message. Alternative versions of retributivism have been offered.

Some scholars, for instance, argue that those who commit crimes violate the trust of their fellow community members. Trust, on this account, is an essential feature of a healthy community. Offenders undermine this trust when they victimize others. In such cases, punishment is a deserved response to such violations and an appropriate way to help maintain or restore the conditions of trust among community members see Dimock, Advocates of this trust-based variety of retributivism must explain which violations of trust rise to the level that warrants criminalization, so that violators should be subject to punishment.

Also, we might question whether such accounts are purely retributivist after all: On the other hand, if punishment is justified not for what it helps to bring about but rather as an intrinsically appropriate because deserved response to violations of trust, then we need an explanation of why such violations deserve punishment, perhaps as opposed to some other form of response. Another form of retributivism holds that offenders incur a moral debt to their victims, and so they deserve punishment as a way to repay this debt McDermott, This moral debt is distinct from the material debt that an offender may incur.

The offender takes not only a material good from the victim but also a moral good. Repayment of material goods does not settle this moral debt, and so punishment is needed to fill this role. Such an account raises a host of questions: How can a moral good be taken away from someone? In what sense if at all has the perpetrator gained this good? How does punishment deny this good to the offender, and how does this thereby make things right for the victim?

Because retributivism claims that punishment is justified as a deserved response to wrongdoing, retributivist accounts should provide some guidance about what sentences are deserved in particular cases. Typically, retributivists hold that sentences should be no more severe than is deserved. This negative retributivist constraint on sentencing corresponds with the negative retributivist constraint on punishment itself namely, that punishment is justified only of those who deserve it. Some scholars find this positive retributivism unappealing because it seems to preclude the state from taking into account mercy or other considerations that might count in favor of lenient sentences.

One question, though, is whether and if so, why retributivists are justified in endorsing the negative retributivist constraint on sentencing without also endorsing the positive retributivist constraint. Retributivists often discuss sentencing in terms of proportionality, where a proportionate sentence is understood as one that is deserved or at least, on some accounts, not clearly undeserved. Sentences may be proportionate in two senses: This sense of proportionality, called ordinal proportionality, holds that similarly serious offenses should receive similarly severe punishments like cases should be treated alike ; that more serious offenses should be punished more harshly than less serious offenses murder should be punished more harshly than shoplifting, for instance ; and that differences in sentence severity should reflect differences in relative seriousness of offenses because murder is much more serious than shoplifting, murder should carry a much more severe sentence.

For example, someone who is young, physically imposing, or has no children may have a much different experience of a year prison term from someone who is much older, physically frail, or must leave behind her children to serve the sentence. Considerations such as these do not in themselves demonstrate that the tenets of ordinal proportionality are false that like cases should not be treated alike, for instance, or that more serious violations should not receive harsher sentences. Rather, these considerations raise challenges to our ability in practice to implement a just sentencing scheme that reflects ordinal proportionality.

Even if sentences can be devised that satisfy ordinal proportionality, however—in other words, even if a sentencing scheme itself is internally proportionate—particular sentences may fail to be proportionate if the entire sentencing scheme is too severe or lenient. For instance, a sentencing scheme in which even the least offenses were punished with prison terms would appear disproportionate even if sentences in the scheme were proportionate relative to each other. Thus theorists note a second sense of proportionality: Cardinal proportionality considers whether sentences are commensurate with the crimes they punish.

A prison term for jaywalking would appear to violate cardinal proportionality, because such a sentence strikes us as too severe given the offense, even if this sentence were proportionate with other sentences in a sentencing scheme—that is, even if it satisfied ordinal proportionality. Thus cardinal proportionality concerns not the relation of sentences to one another, but instead the relation of a sentence to the crime to which it is a response.


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Put another way, even if an entire sentencing scheme is internally ordinally proportionate, we need guidance in how to anchor the sentencing scheme to the crimes themselves so that offenders in particular cases receive the sentences they deserve. In addition to addressing questions of deserved sentence severity, we would like retributivism to provide some guidance about how to determine what mode, or form, of punishment is appropriate in response to a given crime. Is prison time, community service, capital punishment, probation, or something else the deserved form of response, and why?

Those who appeal to intuitions that the guilty deserve to suffer, for instance, can similarly appeal to intuitions that those who are guilty of more serious offenses deserve to suffer more than those who are guilty of less serious offenses. As discussed, however, we would like to know how much punishment is deserved in particular cases in nonrelative terms, and also what form the suffering should take.

One well-known account of sentencing is provided by lex talionis that is, an eye for an eye, a tooth for a tooth. Immanuel Kant famously endorsed this principle: As critics have noted, though, not every crime appears to have an obvious like-for-like response—what would lex talionis demand for the childless kidnapper, for instance Shafer-Landau, And even when a like-for-like response is clearly indicated, it will not always be palatable torturing the torturer, for example.

We might assert instead that the sentence and the offense need not be alike in kind, but that the sentence should impose an amount of suffering equal to the harm done by the offender. Still, questions arise of how to make interpersonal comparisons of suffering.

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And again, for the most heinous crimes, a principle of inflicting equal amounts of suffering may recommend sentences that we would find troubling. The fair play view holds that punishment functions to remove an unfair advantage gained by an offender relative to members of society generally. Critics of this view often object, however, that it provides insufficient or counterintuitive guidance about sentencing.


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Put simply, there does not seem to be any advantage that an offender gains, in proportion with the seriousness of her crime, relative to community members generally. On one version of the view, the offender gains freedom from the burden of self-constraint that others accept in complying with the particular law that the offender violates. If so, then the sentence severity should be proportionate to the burden others feel in complying with that law.

But compliance with laws is often not a burden for most citizens. Indeed, it is often less burdensome to comply with prohibitions on serious offenses murder, assault, and so forth than it is to comply with prohibitions on lesser crimes tax evasion, jaywalking, and so forth , given that we are more often tempted to commit the lesser crimes.

But if the unfair advantage that punishment aims to remove is freedom from the burden of self-constraint, and if self-constraint is often more burdensome with lesser crimes, then these less serious crimes will often appear to merit relatively more severe punishments. This is a violation of ordinal proportionality. Similar problems arise for other versions of the fair play view.

Suppose, for instance, that the unfair advantage a criminal gains is not freedom from the burden of complying with the particular law she violates, but rather freedom from complying with the rule of law in general. This general compliance, Richard Dagger writes, is a genuine burden: Critics have objected, however, that on this conception of the unfair advantage all offenses become, for the purposes of punishment, the same offense.

If the unfair advantage is the same, however, then removing the advantage would seem to require equal sentences. Again, such sentencing appears to violate ordinal proportionality. For the censure view, questions arise about what form of punishment and what severity will communicate the deserved message of condemnation in particular cases. On such a view, the principles of ordinal proportionality appear to follow straightforwardly: The censure view should provide guidance not only about how severely to punish crimes relative to each other, but also how severely to punish in absolute terms, and also the appropriate mode of punishment.

To say that manslaughter should be censured more severely than theft, for instance, does not actually tell us how severely to censure manslaughter or theft, or with what form of punishment. Again, the challenge is in determining how to anchor the sentencing scale to actual offenses.

Should the least serious offenses receive censure in the form of a small fine, a day in jail, or a year in jail? Should the most serious offenses receive capital punishment, life imprisonment, or some less severe sentence? Similar questions arise for accounts that characterize punishment as a deserved response to violations of trust, or as a deserved response to the incurrence of a moral debt.

What form and severity of punishment is appropriate to maintain conditions of community trust in response to attempted kidnapping, or the theft of a valuable piece of art? How severe must a sentence be to resolve the moral debt that is incurred when one impersonates a police officer, or cheats on her taxes? Indeed, questions about fixing deserved sentences in response to particular offenses arise for retributivist accounts generally.

Critics have charged that retributivism is unable to provide adequate, nonarbitrary guidance about either the deserved severity or deserved form of punishment in particular cases see Shafer-Landau, Retributivists are, of course, aware of such objections and have sought to meet them in various ways. Nonetheless, questions about proportionate sentencing continue to be a central challenge for retributivist accounts.

In part as a response to objections commonly raised against consequentialist or retributivist views, a number of theorists have sought to develop alternative accounts of punishment.

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For some theorists, this question is best cast in terms of rights: One way in which punishment would not violate the rights of offenders is if, in committing the crime for which they are convicted, they forfeit the relevant right s. Because offenders forfeit their right not to be punished, the state has no corresponding duty not to punish them. Notice that the forfeiture view itself does not imply any particular positive justification of punishment; it merely purports to explain why punishing offenders does not violate their rights.

This is consistent with maintaining that the positive justification of punishment is that it helps reduce crime, or conversely, that wrongdoers deserve to be punished. Thus the forfeiture view does not provide a complete account of the justification of punishment. Proponents, however, take this feature to be a virtue rather than a weakness of the view. The forfeiture claim raises a number of key questions: For those who are gripped by the dilemma of why punishing offenders does not violate their rights, the mere answer that offenders forfeit their rights, without some deeper account of what this forfeiture amounts to, may seem inadequate.

Thus some theorists attempt to ground their forfeiture claim in a more comprehensive moral or political theory see, for instance, Morris, Second, what is the nature of the rights forfeited? Do offenders forfeit the same rights they violate? If so, then this raises some of the same challenges as we saw with certain forms of retributivism: Alternatively, is the forfeited right simply the right not to be punished? If every offender forfeits this same, general right, then on what basis can we distinguish what sentence is permissible for different offenders?

For example, if the burglar forfeits the same right as the murderer, then what prevents us from imposing the same punishment in each case could two offenders forfeit the same right to different degrees, as some have suggested? Third, how should we determine the duration of the forfeiture? Fourth, if an offender forfeits her right against punishment, then why does the state maintain an exclusive right to punish?

Why are other individuals not permitted to punish? This is the central claim of the consent view.

Crime and punishment

Defended most notably by C. Nino , the consent view holds that when a person voluntarily commits a crime while knowing the consequences of doing so, she effectively consents to these consequences. In doing so, she waives her right not to be subject to punishment. This is not to say that she explicitly consents to being punished, but rather that by her voluntary action she tacitly consents to be subject to what she knows are the consequences.

Like the forfeiture view, the consent view does not supply a positive justification for punishment. To say that a person consents to some treatment does not by itself provide us with a reason to treat her that way. News all Most Read Most Recent Climbing Ben Nevis climber, 21, dies after falling 1,ft from UK's highest mountain The man was with a fellow climber from Cardiff University Mountaineering Club, who miraculously survived the same plunge with just a couple of broken bones.

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