Limiting Retributivism: The Consensus Model of Criminal Punishment

Abstract

This paper argues that Norval Morris' theory of limiting retributivism should be recognized as the consensus model of criminal punishment. Some version of Morris' approach is embodied in the current sentencing regimes of almost all American states, even sentencing guidelines regimes expressly founded on a Just Deserts model, and in many nations, both in common law and civil law legal systems. Limiting retributivism is popular with practitioners, and makes good sense as a matter of policy, because it strikes an appropriate balance between the conflicting punishment goals and values which are recognized in almost all western countries. The theory accommodates retributive values (especially the importance of limiting maximum sanction severity) along with crime-control goals such as deterrence, incapacitation, rehabilitation, and denunciation. It also promotes efficiency, and provides sufficient flexibility to incorporate victim and community participation, local values and resource limitations, and restorative justice programs. Recognizing and promoting a consensus model based on Morris' theory would have considerable value; the theory enjoys widespread support, provides a principled basis to resist persistent political and media pressures to escalate sanction severity, and gives researchers and sentencing policy makers in diverse systems a common framework within which to compare, evaluate, and reform sentencing practices.