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

New Criminal Law Review, Vol. 12, p. 1, 2009

FSU College of Law, Public Law Research Paper No. 348

42 Pages Posted: 25 Feb 2009 Last revised: 9 Jun 2009

See all articles by Shawn Bayern

Shawn Bayern

Florida State University - College of Law

Date Written: February 1, 2009

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

Suggested Citation

Bayern, Shawn J., The Significance of Private Burdens and Lost Benefits for a Fair-Play Analysis of Punishment (February 1, 2009). New Criminal Law Review, Vol. 12, p. 1, 2009, FSU College of Law, Public Law Research Paper No. 348, Available at SSRN: https://ssrn.com/abstract=1349348

Shawn J. Bayern (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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