Desert, Democracy, and Sentencing Reform

Abstract:     
Exactly how much punishment an offender deserves is something of a metaphysical mystery, or so it has appeared to be in the past. A new discourse of desert seeks to close the gap between philosophical theories and everyday intuitions of deserved punishment, using the former to guide and the latter to legitimize sentencing policies that embrace desert as a limiting principle. This Article examines the operation of desert and finds that in practice, desert has proven more illimitable than limiting. Conceptions of desert are, first, elastic: they easily stretch to accommodate and approve increasingly severe sentences. Desert judgments are also opaque: they appear to be influenced in some cases by racial bias or other extralegal considerations, but such bias is cloaked by the moral authority of desert claims. A better strategy for sentencing reform would be to scrutinize desert claims in the criminal law realm in the same way that post-Rawlsian discussions of distributive justice have scrutinized claims of deserved wealth. We will not and need not eliminate the rhetoric of desert, but we can and should treat it with greater skepticism.

Keywords: desert, sentencing, punishment, retributivism

Accepted Paper Series