Conflicting Theories on the Proper Role of Just Deserts: Irrelevant, Complementary, or Inviolate?

Abstract

The last several decades of the 20th century saw a battle between retributivists who wanted criminal liability and punishment to depend upon an offender’s “just deserts” and  crime-control utilitarians who were willing to deviate from desert to maximize deterrence, incapacitation, or rehabilitation. In the United States, the American Law Institute’s 2007 revision to the Model Penal Code’s distributive principle sided with the retributivists by setting desert as inviolate, but that has not settled the debate in the U.S. or elsewhere. Current debate has simply become more complex or obscure, often with advocates employing new language that presents their views as more consistent with desert, although the change is more semantic than meaningful. This Article surveys the current landscape surrounding desert and proposes a taxonomy for better understanding that debate. 

Part I of the Article classifies three basic views of desert: desert as irrelevant, desert as complementary, and desert as inviolate in setting criminal liability and punishment. However, there are significant philosophical and political variations within each of these major views. Desert-irrelevant proponents include harsh crime-control utilitarians and prison abolitionists. Desert-complementarians include everyone from old school liberals, tough-on-crime conservatives, and progressive criminal justice reformers. Desert-inviolate advocates are also a diverse group reflecting the flexibility of desert as a concept. Many criminal justice reformers may be surprised to learn they share a perspective on desert quite similar to bitter political or policy opponents. Part II of the Article briefly describes common critiques of each view of desert without taking a position. 

What emerges is a picture of desert both nuanced and important. Despite being flexible enough to accommodate a wide range of policy preferences, desert imposes real limits on punishment that some criminal justice policymakers may find undesirable. The intuitive valuation of and support for desert among ordinary people also makes desert a kind of default principle that reformers can choose to work within or attempt to argue their way out of. The intuitive power of desert may also explain why there are increasing attempts to evolve the concept by expanding blameworthiness calculations to include factors foreign to traditional desert theory. With so many different groups employing desert-coded language and laying claim to the term “justice,” it is more important than ever to clarify the role of desert in current debates.

Keywords: just deserts, desert, crime-control, general deterrence, incapacitation, Model Penal Code, progressive criminal justice reform, desert as inviolate, desert as complementary, rehabilitation, three strikes, deviation from desert, prison abolition, punishment abolition, distributive principles, punishment theory, limiting retributivism, retribution