Competing Conceptions of Modern Desert: Vengeful, Deontological, and Empirical
Cambridge Law Journal, Vol. 67, p. 145, March 2008
32 Pages Posted: 18 Aug 2006
The dispute over the role desert should play, if any, in assessing criminal liability and punishment has a long and turbulent history. There is some indication that deserved punishment - referred to variously as desert, just punishment, retributive punishment, or simply doing justice - may be in ascendance, both in academic debate and in real world institutions. A number of modern sentencing guidelines have adopted it as their distributive principle. Desert is increasingly given deference in the purposes section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code's provisions. Indeed, a recent committee of the American Law Institute proposed revising the Model Penal Code's purposes section to adopt desert as the dominant distributive principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court's enthroning retributivism as the primary justification for the death penalty.
But there remains a good deal of controversy over the reliance upon desert. It is strenuously argued by some that desert is inappropriate as a distributive principle because it is mean-spirited and harsh, because it has an unhealthy preference for prison, because it is based upon only vague notions that at most mark punishment extremes to be avoided, because people are in hopeless disagreement about what it requires, because it fails to avoid avoidable crime, because it is immoral, and because it is impractical to implement.
This Article argues that many of these objections are valid, at least when applied to some conceptions of desert, but that there are at least three distinct conceptions of desert to be found in the current debates, typically without distinction being made between them. The three include what might be called vengeful desert, deontological desert, and empirical desert. Each of the offered criticisms of desert is a fair objection to one of these conceptions of desert but often an unfair objection to another. Thus, an accurate assessment of desert as a distributive principle requires that these three conceptions of desert be distinguished from one another, and that the strengths and weaknesses of each conception be judged on its own.
Keywords: criminal law and procedure, jurisprudence, public law and legal theory, desert, vengeful, deontological, empirical, distributive principle, punishment, retribution, sentencing, immoral, morality
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