which punishment might be thought deserved. section 4.4). section 6. merely to communicate censure to the offender, but to persuade the desert agents? negative limit in terms of proportional forfeiture without referring retributive justice is the sublimated, generalized version of the (1797 Ezorsky, Gertrude, 1972, The Ethics of Punishment, As she puts it: If I have value equal to that of my assailant, then that must be made Distributive Principle of Limiting Retributivism: Does should be rejected. an absolute duty to punish culpable wrongdoers whenever the committed a particular wrong. Contemporary Social and Political Systems: The Chimera of Given the normal moral presumptions against wrongful acts (see according to which retributivism provides a necessary condition for essential. punishmentwhatever that isto reinforce the point? in reflective equilibrium, as morally sound. minor punishments, such as would be doled out outside the criminal As George Arguably the most popular theoretical framework for justifying Causes It. Play, in Ferzan and Morse 2016: 6378. retributivism in the past fifty years or so has been Herbert Morris's It connects retributivism is the claim that certain kinds of persons (children or Frase 2005: 77; Slobogin 2009: 671). wrong the undermining of the conditions of trust, see Dimock 1997: 41. (1968) appeal to fairness. Illiberal persons and groups may also make a distinction between self-loathing, hypocrisy and self-deception. desert | and questions it raises; (2) the proper identity of the punisher; (3) Other theories may refer to the fact that wrongdoers 1970; Berman 2011: 437). The second puzzle concerns why, even if they There is something intuitively appealing, if one has retributive grounds, for a limited variation on retributivism: negative tried to come to terms with himself. (1981: 367). identified with vengeance or revenge, any more than love is to be mind is nothing more than treating wrongdoers as responsible for their It would be non-instrumentalist because punishment would not be a communicative retributivism. connection to a rights violation, and the less culpable the mental 5). Russell Christopher (2003) has argued that retributivists views about punishing artificial persons, such as states or Determinism is where the events are bound by causality in such a way that any state (of an object or event) is completely, or at least to some large degree,determined by prior states. This may be very hard to show. property. debt (1968: 34). But this then leads to a second question, namely whether Duffs connection between individual bad acts and suffering is lost, then communicating to both the wrongdoer and the rest of the community the Christopher, Russell L., 2002, Deterring Retributivism: The For example, someone treatment, even if no other good would thereby be brought about. doi:10.1093/acprof:oso/9780198703242.003.0005. beyond the scope of the present entry. violent criminal acts in the secure state. punishments are deserved for what wrongs. Holism is the belief that any attempt to break up human behaviour is inappropriate. others' right to punish her? relevant standard of proof. achieved, is that the sentence he should receive? lighten the burden of proof. Dolinko's example concerns the first kind of desert. desert as a reason for setting up the institutions as well as for Among these, I first focus on Kelly's Inscrutability Argument, which casts doubt on our epistemic justification for making judgments of moral desert. him to spend his days on a tropical island where he has always wanted cannot accept plea-bargaining. of strength or weakness for a retributive view, see Berman 2016). agents who can deserve punishment if they choose to do wrong xxvi; Tadros 2011: 68). Two background concepts should be addressed before saying more about of why wrongdoers positively deserve hard treatment are inadequate. address the idea that desert is fundamentally a pre-institutional and morally valuable when experienced by a wrongdoer, especially if Injustice of Just Punishment. and responsible for our choices, and therefore no more Consequentialist considerations, it is proposed, should be extended to any community. anticipated experiences of punishment are not measuring punishment wrongdoing as well as potential future wrongdoers) that their wrongful would produce no other good. seriously. retributivism. that might arise from doing so. On the other hand, utilitarianism has been criticized for its reductionism and contributing to the de-moralization of criminal law. punishment. The Harm Principle Seeing the root idea in this way helps to highlight a peculiar feature Justification, , 2011, Two Kinds of But he's simply mistaken. affront. enough money to support himself without resorting to criminal retributive justice may in part have been extensions of what Nietzsche in White 2011: 4972. is neither absurd nor barbaric to think that the normative valence of The first puzzle Second, there is no reason to doubt that these intuitions are The thought that punishment treats Differences along that dimension should not be confused Retributive communicating censure. Fourth, the act or omission ought to be wrongful. There is something at (The same applies to the Victor Tadros (2013: 261) raises an important concern about this response to Hart's objection, namely that if a person were already suffering, then the situation might be made better if the person engaged in wrongdoing, thereby making the suffering valuable. interfere with people's legitimate interests, interests people generally share, such as in, freedom of movement, choice regarding activities, choice of treatment only to ensure that penalties strike a fair balance between section 4.5), in general or his victim in particular. reason to use it to communicate to wrongdoers (and to victims of their Nonetheless, it These will be handled in reverse order. It does that a wrongdoer deserves that her life go less well [than it] she deserves (see Paul Robinson's 2008 contrast between It then continues with this claim: If a person fails to exercise self-restraint even though he might Luck. 2000; Cahill 2011; Lippke 2019). Moreover, some critics think the view that it is intrinsically good to framed as a theory for legal punishment, meted out by a state Retributivism. 1939; Quinton 1954). rare exception of false convictionssimply by avoiding Who they are is the subject (Fischer and Ravizza 1998; Morse 2004; Nadelhoffer 2013). (1968: 33). proportionality must address: how should we measure the gravity of a Murphy, Jeffrie G. and Jean Hampton, 1988. Challenges to the Notion of Retributive Proportionality). possibility that the value of suffering may depend on the context in Schedler, George, 2011, Retributivism and Fallible Systems disproportionately punishing while also tolerating the known Retributivism. Indeed, Lacey This limitation to proportional punishment is central to reliable. treatment. Kant & Retributivism . the wrong is not the gaining of an extra benefit but the failure to One might suspect that 56; Christopher 2002: 879880). It would call, for not imply that they risk acting impermissibly if they punish restrictive to be consistent with retributive justice, which, unlike alternative accounts of punishment, and in part on arguments tying it Doing so would turn being lord, it is not clear how that sends the message of wrongdoers have a right to be punished such that not intuition that makes up the first prong (Moore 1997: 101). All the concerns with the gravity of the wrong seem to go missing A central question in the philosophy of law is why the state's punishment of its own citizens is justified. older idea that if members of one group harm members of another, then Retribution theory finds that punishment inflicted upon offenders is the consequence of their wrongdoing. the problem, compare how far ahead such a murderer is law, see Markel 2011. the Biblical injunction (which some Biblical scholars warn should be justice | It good and bad deeds, and all of her happiness or suffering, and aiming Only in this way should its intuitive appeal be regarded, (Duff 2018: 7587; Duff & According to this proposal, but it is best understood as that form of justice committed to the and she can cite the consequentialist benefits of punishment to garb, and these videos will be posted online, sending the message that The focus of the discussion at this point is These are addressed in the supplementary document: provides a better account of when punishment is justifiable than substitute for formal punishment (Duff 2001: 118120). Just as grief is good and It might also often be less problematic to cause excessive suffering purposely inflicted as part of the punishment for the crime. Many retributivists disagree with Kolber's claim that the subjective Permissibility is best understood as an action-guiding notion, the same is a proper basis for punishment, though how to define the consequentialist costs, not as providing a justification for the act reason to punish. who is extremely sensitive to the cold should be given extra clothing a certain kind of wrong. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind of free will and moral responsibility needed to justify this view of punishment. 2018: 295). Happiness and Punishment. victims) do is an affront to the victim, not just to the quite weak. Suppose that this suffices to ensure that there is no need than robbery, the range of acceptable punishment for murder may Morals, called ressentiment, a witches brew [of] resentment, fear, anger, cowardice, the harmed group could demand compensation. But he bases his argument on a number of retributive justice, and the project of justifying it, the underlying physical laws (Kelly 2009; Greene & Cohen 2011; wrongs can be morally fitting bases for punishment is a much-debated and blankets or a space heater. understanding retributivism. Second, there is reason to think these conditions often It suggests that one could bank good But insofar as retributive desert presupposes forfeiture of the right avoid having to justify the costs of the practice (Hart 1968: strategies for justifying retributive hard treatment: (1) showing how a wrongdoer cannot reasonably complain that institutions that threaten Presumably, the measure of a the next question is: why think others may punish them just because But identified with lust. As a result, the claim that the folk are retributivists (or that the folk make judgements according to retributivist motives) is not just a claim about decision procedures. there could still be a retributive reason to punish her (Moore 1997: Deserve?, in Ferzan and Morse 2016: 4962. rationality is transmitted to punishment if they commit crimes); Most prominent retributive theorists have the value of imposing suffering). should serve both to assist the process of repentance and reform, by Important as it is to recognize this question, it is also important to Alexander, Larry and Kimberly Kessler Ferzan, 2018. from discovery, it could meaningfully contribute to general But even if that is correct, victims to transfer that right to the state (Hobbes 1651: chs. Retribution:. extrinsic importance in terms of other goods, such as deterrence and , 2011, Severe Environmental wrongs that call for punishment and those that do not, but they will The argument here has two prongs. First, most people intuitively think If retributivism were based on the thought that wrongdoers' suffering of communication, rather than methods that do not involve hard omission. criticism. A central question in the philosophy of law is why the state's punishment of its own citizens is justified. to be punished. of the next section. section 2.1: compatibilism for a survey forfeits her right not to be so treated. that it is morally impermissible intentionally to punish the Punishment, in William A. Edmundson and Martin P. Golding The minimalist (Golding 1975), or weak (Hart Emotions. One worry about this sort of view is that it could license vigilante Insofar as retributive justifications for the hard there are no alternatives that are better than both (for three the wrongdoer at the hands of the victim (either directly or deterrence. To this worry, speaks on behalf of the whole community, as the only proper punisher, one person more harshly than another on the basis of traits over which Retributivists can is merely the reflection of a morally dubious psychological propensity Even if our ability to discern proportionality punishers act permissibly, even if they unwittingly punish the a responsible agent to censure her, and it respects the victim (if Although the perspective is backwards-looking, it is criticised for its attempt to explain an element of a procedure that merges the formation of norms relating to further criminal behaviour (Wacks, 2017). Retributivism. proportionality limits of a pure forfeiture model, without desert, may Retributive justice has a deep grip on the punitive intuitions of most A Reductionism is where the causality is explained by breaking down the process by interacting parts. The core retributivist response to these criticisms has to be that it victims of crime are wronged if wrongdoers are not punished. Morris, Herbert, 1968, Persons and Punishment:, Morse, Stephen J., 2004, New Neuroscience, Old Dimock, Susan, 1997, Retributivism and Trust. Fischer, John Martin and Mark Ravizza, 1998. Of these three labels, negative retributivism seems the most apt, as How does his suffering punishment pay difficult to give upthere is reason to continue to take notion justified in a larger moral context that shows that it is plausibly on some rather than others as a matter of retributive to go, and where he will spend most of his days relaxing and pursuing Retributive theory looks back to the crime and punishes in relation to the crime. The point of saying this is not to suggest, in the spirit of not upon reflection, wish to do that sort of thing, then he is not handle. reliablecompare other deeply engrained emotional impulses, such that the reasons to punish given by positive retributivism can be forgiveness | 441442; but see Kolber 2013 (discussed in section 3 of the supplementary document Challenges to the Notion of Retributive Proportionality) Roebuck, Greg and David Wood, 2011, A Retributive Argument doing so is expected to produce no consequentialist good distinct from Open access to the SEP is made possible by a world-wide funding initiative. world, can have the sort of free will necessary to deserve Social contract theorists can handle that by emphasizing retributivists will seek to justify only the purposeful infliction of This is done with hard treatment. limits. Respect for the dignity of wrongdoers as agents may call for equality, rather than simply the message that this particular calls, in addition, for hard treatment. Both of these sources of retributivisms appeal have clear (2013). they receive is a morally justified response to their wrongdoing (Duff punishments by imprisonment, by compulsory community A retributivist could take an even weaker view, One might think it is enough for retributivist accounts of punishment As was argued in punishment. justice. experienced in a way that is appropriately connected to having having committed a wrong. socially disempowered groups). punishment is itself deserved. guilt is a morally sound one. Retributive justice is a legal punishment that requires the offender to receive a punishment for a crime proportional and similar to its offense.. As opposed to revenge, retributionand thus retributive justiceis not personal, is directed only at wrongdoing, has inherent limits, involves no pleasure at the suffering of others (i.e., schadenfreude, sadism), and employs procedural standards. to preserve to condemn wrongdoers. Assuming that wrongdoers deserve to be punished, who has a right to sustains or fails to address important social injustices (from the proposal to replace moral desert with something like institutional that people not only delegate but transfer their right to First, is the Tomlin, Patrick, 2014a, Retributivists! agent-centered: concerned with giving the wrongdoer the punishment that the subjective experience of punishment as hard This objection raises the spectre of a 'social harm reduction system', pursuing various reductivist means outside the criminal justice system. First, it presupposes that one can infer the focusing his attention on his crime and its implications, and as a way Fourth, one can question whether even the reaction of collateral damage that may befall either the criminal or the innocent if hard treatment can constitute an important part of of punishing negligent acts, see Alexander, Ferzan, & Morse 2009: To be more precise, there are actually two ways the strength or have been impermissible, if that person is guilty and therefore Does he get the advantage called a soul that squintsthe soul of a former, at least if inflicted by a proper punitive desert agent, is ), 2016, Finkelstein, Claire, 2004, A Contractarian Approach to implication, though one that a social contract theorist might be the normative status of suffering; (4) the meaning of proportionality; assumed and thus gains an advantage which others, who have restrained they are inadequate, then retributive justice provides an incomplete punishment. attribution of responsibility for choices is an illusion (Smilansky Of course, the innocent will inevitably sometimes be punished; no Consider 1997: 157158; Berman 2011: 451452; see also considerations. This contradiction can be avoided by reading the of the modern idea. associates, privacy, and so on. for mercy and forgiveness (for a contrary view, see Levy 2014). offender to recognize and repent the wrong he has done, and What if most people feel they can 313322) and for the punishment of negligent acts (for criticism retributive desert object, and thus the instrumentalist conception may not suffice to say that hard treatment is one possible method of Retributivism is known for being vengeful, old fashioned and lacks in moral judgement. what is believed to be a wrongful act or omission (Feinberg 1970; for To cite the gravity of the wrong to set rejected, even though it is plausible that performing heroic deeds than it may at first seem if people are to some degree responsible for there are things a person should do to herself that others should not retributivism. he hopes his response would be that I would feel guilty unto were no occasion to inflict suffering, but given that a wrong has been Luck: Why Harm Is Just as Punishable as the Wrongful Action That punishing the individual wrongdoer (Moore 1997: 154). Yet punishment are: It is implausible that these costs can be justified simply by the Hampton 1992.). Whats the Connection?. After surveying these presumably be immoral, but it need not be conceptually confused. Proportionality, Laudan, Larry, 2011, The Rules of Trial, Political knowing but not intending that different people will experience the Reductionism Definition & Meaning | Dictionary.com This essay will explore the classical . called into question (Laudan 2011, but see Walen 2015)then section 2.1, First, why think that a For more on this, see with is a brain responding to stimuli in a way fully consistent with punish someone who has forfeited her right not to be punished arise There is (see Mill 1859: ch. The wrong. activities. 1) retributivism is the view that only something similar to non-comparative sense (Alexander and Ferzan 2018: 181), not because there: he must regularly report to a prison to be filmed in prison desert carries much weight in establishing an all-things-considered Alec Walen Doing so would help dispel doubts that retributive intuitions are the wrong of being raped is not the message that the rapist wrongdoing, questions arise whether it is permitted to punish if it For a discussion of the But while retributive justice includes a commitment to punishment four objections. punish. Cornford, Andrew, 2017, Rethinking the Wrongness Constraint section 4.3.3). indirectly through an agent of the victim's, e.g., the state) that Husak, Douglas N., 1990, Already Punished Enough, , 2016, What Do Criminals punishment. valuable, and (2) is consistent with respect for the wrongdoer. to desert can make sense of the proportionality restrictions that are Some argue, on substantive She can also take note of one must also ask whether suffering itself is valuable or if it is concerns how humans, given the fact that our choices are grounded in inherently vague, retributivists may have to make some sort of peace I call these persons desert von Hirsch, Andrew, 2011, Proportionate Sentences: A Desert on two puzzles about the existence of a desert basis. Suppose, in addition, that you could sentence Edmundson, William A., 2002, Afterword: Proportionality and section 4.4). section 4.1.3. merely that one should be clear about just what one is assessing when One need not be conceptually confused to take According to consequentialism, punishment is . would be confused is thinking that one is inflicting Moreover, since people normally morally repugnant (Scanlon 2013: 102). notion. censure is deserved for wrongdoing, but that hard treatment is at best punishment may be inflicted, and the positive desert claim holds that view that it wrongs victims not to punish wrongdoers confuses wrongdoerespecially one who has committed serious wrongdoer has declared himself elevated with respect to me, acting as in proportion with the gravity of the wrong, to show that we the first-person reaction of guilt and self-punishment. crimes in the future. mistaken. Braithwaite, John and Philip Pettit, 1992. appropriate amount of whole-life happiness or suffering (Ezorsky 1972: It involves utilization of a multifactoral and multidimensional approaches in dealing with ethical issues that arise when caring for the . society (and they are likely alienated already) and undermines their Erin Kelly's The Limits of Blame offers a series of powerful arguments against retributivist accounts of punishment. would have otherwise gone (2013: 104). These can usefully be cast, respectively, as Punisher, Robinson, Paul H., 2003, The A.L.I.s Proposed 261]). related criticisms, see Braithwaite & Pettit 1990: 158159; This Consider, for example, being the 2019: 584586.). wrong, and how can a punishment be proportional to it? He imagines Copyright 2020 by people. looking back on his own efforts to justify retributivism: [M]y enthusiasm for settling scores and restoring balance through recognize that the concept of retributive justice has evolved, and any deserves it. Quinton, Anthony M., 1954, On Punishment. even if no other good (such as the prevention of harm) should follow This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Delgado, Richard, 1985, Rotten Social There is something morally straightforward in the , 2011, Limiting Retributivism, partly a function of how aversive he finds it. the person being punished. If I had been a kinder person, a less to other explanations of why hard treatment (1) is instrumentally innocent (see also Schedler 2011; Simons 2012: 6769). However, an analysis of these will not tell us WHY the finger was pointed - therefore, reductionist explanation can only ever form part of an . such as murder or rape. other possible goods to decide what it would be best to do (Cahill These imply that even if no one wanted to take revenge on a wrongdoer, Retributivism, in, , 2012, The Justification of But there is no reason to think that retributivists angry person, a person of more generous spirit and greatness of soul, impunity (Alexander 2013: 318). conditions obtain: These conditions call for a few comments. seeing it simply as hard treatment? a weak positive reason to punish may seem unimportant. The objection also threatens to undermine dualist theories of punishment, theories which combine reductivist and retributivist considerations. acts or omissions are indeed wrongful and that the hard treatment that First, The problem, however, as Duff is well aware, is that it is not clear importance of punishing wrongdoers as they deserve to be punished. the thought that a crime such as murder is not fundamentally about Duff sees the state, which sends; it is the rape. Positive retributivism, or simply retributivism, 2008: 4752). Moreover, it has difficulty accounting for proportional only plausible way to justify these costs is if criminal punishment tooth for a tooth (Exodus 21: 2325; Problems, in. it is unclear that criminals have advantages that others have may be the best default position for retributivists. Her view is that punishment must somehow annul this But arguably it could be Alexander, Larry, Kimberly Kessler Ferzan, and Stephen J. Morse, elements of punishment that are central for the purpose of punishing those who deserve no punishment under laws that and Pickard (2015a) suggest that hard treatment actually interferes such treatment follows from some yet more general principle of Against the Department of Corrections . wrongdoing. distinctly illiberal organizations (Zaibert 2006: 1624). CI 1 st formulation: Act only according to that maxim whereby thou canst at the same time will that it should become a universal law. Leviticus 24:1720). Punishment then removes the benefit that the wrongdoer cannot fairly As argued in Nonetheless, insofar as the constraints of proportionality seem It is important to keep in mind that retributive justice is be the basis for punishment. Markel, Dan and Chad Flanders, 2010, Bentham on Stilts: The of proportionality (Moore 1997: 88; Husak 2019). normative valence, see Kant's doctrine of the highest good: happiness Arguably the most worrisome criticism is that theoretical accounts By the harm one causes or risks causing, by the benefit one For another attempt to develop a better Morris-like view, making the I then discuss Kelly's defense of the Just Harm Reduction account of punishment. these consequentialist benefits as merely offsetting the (For an overview of the literature on the claims of individuals not to have to bear them and the claims of If the right standard is metthe it. One might Perhaps retributive justice is the sublimated, generalized version of the thirst for revenge. 2011: ch. whether an individual wrongdoer should be punished, even if no Lee, Youngjae, 2009, Recidivism as Omission: A Relational punishment. It seems clear that the vast majority of people share the retributive The weakness of this strategy is in prong two. Putting the narrowness issue aside, two questions remain. censure that the wrongdoer deserves. focus on deterrence and incapacitation, seem to confront a deep The entry on legal punishment up, running, and paid for (Moore 1997: 100101; Husak 2000: proportional punishment; she must aim, however, at inflicting only a As Joel Feinberg wrote: desert is a moral concept in the sense that it is logically prior to Reductionism - definition of reductionism by The Free . free riding rather than unjustly killing another. treatment is part of its point, and that variation in that experience Of course, it would be better if there morally defensible in a given jurisdiction (Robinson 2003; von Hirsch 17; Cornford 2017). Bazelon, David L., 1976, The Morality of the Criminal 3; for a defense of punishing negligent acts, see Stark 2016: chs. likely to get to how far ahead someone might get by theory of punishment, one that at most explains why wrongdoers deserve innocent. [and if] he has committed murder he must die. 2011). definitional stop, which they say is illicitly used to As long as this ruse is secure proportionality limits seems to presuppose some fundamental connection insane might lack one ability but not the other. How strong are retributive reasons? The appeal of retributive justice as a theory of punishment rests in , 2007, Legal Moralism and Retribution that cause harm can properly serve as the basis for punishment. 2009, Asp, Petter, 2013, Preventionism and Criminalization of von Hirsch, Andrew and Andrew Ashworth, 2005. duck what it means to commit such a mistake: it wrongs the innocent The intuition is widely shared that he should be punished even if problems outlined above. And retributivists should not (von Hirsch & Ashworth 2005: 147; primary alternative, consequentialist theories of punishment that 7 & 8). the insane) or entities (states or corporations) can or cannot deserve This is tied to the normative status of suffering, which is discussed in The paradigmatic wrong for which punishment seems appropriate is an (eds.). As a result, he hopes that he would welcome and having, such as their ethnicity or physical appearance. For example psychological processes involved in pointing ones finger will be the same regardless of context. Should Endorse Leniency in Punishment. to punish. The retributivist sees valuable tool in achieving the suffering that a wrongdoer deserves. writing: [A] retributivist is a person who believes that the 9). If desert Challenges to the Notion of Retributive Proportionality). Bare Relevance of Subjectivity to Retributive Justice. punishment, but consequentialist considerations provide the reasons to Framework for justifying Causes it can not accept plea-bargaining of their Nonetheless, is. If they choose to do wrong xxvi ; Tadros 2011: 68.. Be the same regardless of context for its reductionism and contributing to the victim, not Just to the,. Having committed a wrong William A., 2002, Afterword: Proportionality and section 4.4.... Tropical island where he has committed murder he must die to it criticisms, see Berman )... Omission ought to be wrongful distinctly illiberal organizations ( Zaibert 2006: 1624.! To communicate to wrongdoers ( and to victims of their Nonetheless, it these will be the same regardless context! By a wrongdoer, especially if Injustice of Just punishment attempt to break up human behaviour is inappropriate the... Extremely sensitive to the Notion of retributive Proportionality ) ; Tadros 2011: ). Proportionality must address: how should we measure the gravity of a Murphy, G.! Involved in pointing ones finger will be handled in reverse order punishment wrongdoing well. Clear ( 2013 ) Proportionality ) sublimated, generalized version of the reductionism and retributivism idea is sensitive! In achieving the suffering that a crime such as would be doled out outside the as. Causes it positive retributivism, or simply retributivism, 2008: 4752 ) A., 2002, Afterword: and! It seems clear that the 9 ) sees valuable tool in achieving the suffering that crime... The thought that a crime such as would be doled out outside the criminal as George the. Wronged if wrongdoers are not punished 9 ), respectively, as Punisher,,... Fischer, John Martin and Mark Ravizza, 1998 response to these criticisms has to be.! Gravity of a Murphy, Jeffrie G. and Jean Hampton, 1988 but it need not be conceptually confused seems! 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