Can Deserts Be Just in an Unjust World?
University of Minnesota - Twin Cities - School of Law
February 5, 2014
Liberal Criminal Theory: Essays for Andreas von Hirsch, edited by Andrew P. Simester, Ulfrid Neumann, and Antje du Bois-Pedain (Hart 2014, Forthcoming)
Minnesota Legal Studies Research Paper No. 14-10
The problems of “just deserts in an unjust world” received little attention before the widespread revival of support in the 1970s for retributivist theories of punishments. The problems are two: whether deep social disadvantage should be recognized as an excusing or mitigating defence in the criminal law, and whether it should be recognized as an appropriate basis for mitigating the severity of punishment. Most legal analysts oppose recognition of social disadvantage defences. Most retributivist philosophers recognize the difficulty of the problem but waffle about appropriate responses. The few who write about it oppose mitigation of sentences. Those views fail to acknowledge the existence of social science evidence on human development that makes clear that many offenders offend for reasons for which no plausible case can be made that they are morally responsible. Formal excusing and mitigating defences, and the appropriateness of deep disadvantage as a justification for mitigation of punishment, should be recognised.
Number of Pages in PDF File: 41
Keywords: rotten social background, social adversity defence, David Bazelon, limiting retributivism, mitigated sentences, Andrew von Hirsch
Date posted: February 7, 2014
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