The Limits of Retributivism

24 New Criminal Law Review 301 (2021)

25 Pages Posted: 19 Jul 2021

Abstract

"Limiting retributivists” believe that the vagueness of retributive proportionality represents a moral opportunity. They maintain that the state can permissibly harm an offender for the sake of crime prevention and other nonretributive goods, so long as the sentence resides within the broad range of retributively “not undeserved” punishments. However, in this essay, I argue that retributivism can justify only the least harmful sentence within such a range. To impose a sentence beyond this minimum would be cruel from a retributive perspective. It would harm an offender to a greater degree without thereby increasing the realization of our retributivist ends. Thus, if our nonretributive policy aims required a harsher sentence, the offender’s retributive desert could not provide the rationale, and we would need another theory that explains why, if at all, harming an offender as a means of realizing the desired nonretributive good is permissible.

Keywords: retributivism, limiting retributivism, proportionality, vagueness, sentencing theory

Suggested Citation

Bronsther, Jacob, The Limits of Retributivism. 24 New Criminal Law Review 301 (2021), Available at SSRN: https://ssrn.com/abstract=3887461

Jacob Bronsther (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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