The Significance of Private Burdens and Lost Benefits for a Fair-Play Analysis of Punishment

Abstract

Herbert Morris's "fair-play" account of retributivism explains punishment as an attempt to restore a fair balance between burdens and benefits. Benefits accrue unfairly to offenders from their crimes, and punishment imposes corresponding burdens. Because of the necessary interval between crime and punishment, however, events following an offender's crime may restore a fair balance between burdens and benefits before the state can effect punishment. This article explores the implications of such events on the justice of punishment under a fairness-based theory.

More specifically, this article considers several classes of situations in which an offender's position has changed since the occurrence of a crime such that punishment may be unjust. These situations fall into two broad categories: (1) those in which the offender has suffered a burden as a result of the crime from a source other than punishment by the state, and (2) those in which an offender does not retain any "benefit" from her crime at the time punishment would be imposed. Punishment in either of these situations may be unjust under an account that depends on a comparison between benefits from crime and burdens from punishment.

Keywords: fair play, criminal theory, punishment, benefits, burdens, time

JEL Classification: K14