Desert, Crime Control, Disparity, and Units of Punishment
Paul H. Robinson
University of Pennsylvania Law School
PENAL THEORY AND PRACTICE: TRADITION AND INNOVATION IN CRIMINAL JUSTICE, A. Duff,, eds, pp. 93-107, Manchester University Press, 1994
A distribution of punishment according to principles of desert frequently conflicts with a distribution according to utilitarian principles of crime control. One can blamelessly cause a harm or evil prohibited by the criminal law. While little or no punishment may be deserved, the offender may be dangerous and his punishment may be an effective means of deterring others. Yet, in determining criminal liability, the criminal law most frequently bars liability in the absence of blameworthiness, deferring to the civil commitment system to provide needed protection from dangerous blameless offenders. But this preference for desert, even at the expense of crime control, is tested again at the time of sentencing. No matter what the offender's assigned liability, deterrent, incapacitative, or rehabilitative goals may suggest a greater (or a lesser ) degree of punishment than does an actor's blameworthiness. And in every instance where the criminal law takes the utilitarian course in assessing liability, it passes the conflict between desert and crime control on to the sentencing judge. Should the offender's sentence more closely match what he deserves or what will minimize future crime, or a compromise between the two?
Number of Pages in PDF File: 15
Keywords: desert, punishment, punishment theory, crime control
JEL Classification: K14Accepted Paper Series
Date posted: February 4, 2005
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