Abstract
One prominent contemporary retributivist theory is built on the notion that crime yields an “unfair advantage” over law-abiding citizens which punishment removes or nullifies. Michael Davis has defended this theory by constructing a market model of “unfair advantage” that he contends answers critics' objections to the retributivist enterprise. I seek to demonstrate the inadequacy of Davis's approach, arguing in particular that the market model rests on an incoherent notion of “demand” and would not, even if coherent, link “unfair advantage” to the seriousness of crimes in any acceptable fashion. The salience of traditional objections to retributivism is thus unaffected by Davis's theory.
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References
Law & Philosophy 12 (1993): 133-56 [hereinafter “Unfair Advantage”].
Ibid., p. 133.
See Dolinko, “Some Thoughts About Retributivism,”Ethics 101 (1991): 537–59.
The principal articles in which Davis developed his version of the fairness theory are “How to Make the Punishment Fit the Crime,”Ethics 93 (1983): 726-52; “Just Deserts for Recidivists,”Criminal Justice Ethics 4 (1985): 29-50; “Why Attempts Deserve Less Punishment Than Complete Crimes,”Law and Philosophy 5 (1986): 1–32; “Harm and Retribution,”Philosophy & Public Affairs 15 (1986): 236-66; “Strict Liability: Deserved Punishment for Faultless Conduct,”Wayne Law Review 33 (1987): 1363-93; “Using the Market to Measure Deserved Punishment,”Iyyun 39 (1990): 295–319; and “Criminal Desert, Harm, and Fairness,”Israel Law Review 25 (1991): 581-94. These articles are reprinted (though with significant excisions in all but theIyyun piece) in Michael Davis,To Make the Punishment Fit the Crime (Westview Press: Boulder, Co., 1992) [hereinafterPunishment], and I shall cite to that book in referring to Davis's writings.
“Unfair Advantage” at 133.
Dolinko, supra note 3, at 541-42.
Morris, “Persons and Punishment,”Monist 52 (1968): 475–501, reprinted in Herbert Morris,On Guilt and Innocence (Berkeley: University of California Press, 1976), pp. 31–58. Morris himself was concerned only to argue that wrongdoers have a right to be punished rather than subjected to “therapeutic treatment,”not to defend retributivism. However, the model he sketched of a just punishment system has greatly influenced subsequent retributivist writers.
This is Jeffrie Murphy's idea; John Finnis takes essentially the same view. See Murphy, “Marxism and Retribution,”Philosophy & Public Affairs 2 (1973): 217-43; Finnis, “The Restoration of Retribution,”Analysis 32 (1972): 132.
This is George Sher's idea. George Sher,Desert (Princeton, N.J.: Princeton University Press, 1987), p. 82.
Dolinko, supra note 3, at 545-47.
Ibid., pp. 548-49.
“Unfair Advantage”: 136.
This is Morris's view: the benefits conferred by the system of criminal law lie in “noninterference by others with what each person values, such as continuance of life and bodily security.” Herbert Morris,On Guilt and Innocence (Berkeley: University of California Press, 1976), p. 33. Davis himself seems prepared to accept this view when he speaks of the “benefit the criminal law offers an individual” as “Dolinko's ‘freedom from aggression and interference.”’ “Unfair Advantage”: 141.
It is curious that Davis should assume that by the “benefit” the criminal obtains I must have meant the proceeds of his crime. For Davis himself has consistently distinguished the criminal's “unfair advantage” quite sharply from whatever “loot” the crime may yield. See, e.g., Punishment, pp. 84, 222, 239; “Unfair Advantage”: 150.
More precisely, a fair punishment would “correspond to the price a license to commit the crime would bring in a relatively fair market” (Punishment, p. 238) - a price which itself would not equal the criminal's “unfair advantage” but would serve as a “gauge” (p. 106) or “measure” (p. 239) or “index” (p. 241) of that advantage.
Oddly, Davis asserts precisely the contrary: “. . . if punishment is fairly proportioned to the unfair advantage committing the crime takes, the punishment will literally take back the advantage.”Punishment, p. 222. Perhaps Davis is not using “literally” literally!
Davis makes this point repeatedly. See, e.g.,Punishment, p. 32, “A retributive method of setting statutory penalties need not depend on any particular theory . . . of the purpose of criminal laws”; p. 217, the fairness theory “includes no claims about the purpose of punishment as an institution” nor about “what justifies having a system of criminal law, what gives the state a right to punish, or whether there is any moral duty to punish”; p. 235, “My concern hereis how much to punish criminals . . . not the definition (or meaning) of punishment, its purpose (or function) as an institution, or its justification”.
This has been noted by Don Scheid, “Davis and the Unfair-Advantage Theory of Punishment: A Critique,”Philosophical Topics 18 (1990): 145.
Punishment, p. 135.
Ibid., p. 239.
Ibid., p. 45.
“Unfair Advantage”: 142.
Besides, Davis more recently hasdenied that the unfair advantage taken by the criminal, which he now calls “cheater's advantage,” consists of “freedom.” “Unfair Advantage”: 150. Rather, it consists of “the possibilities that the crime in prospect opens up.” (I do not understand what this means.)
As, indeed, Davis seems to recognize when he declares that “subjection to the criminal law is not voluntary. Individuals cannot throw off the obligation to obey even by renouncing the law's protection.” “Unfair Advantage”: 141.
See Dolinko, supra note 3, at 547, making the same points against George Sher's account of the “benefit” the criminal obtains from his crime.
It is worth pointing out that the question of what “unfair advantage”is is by no means a trivial or simple question, given how strikingly Davis's use of “advantage” diverges from ordinary usage. For example, while discussing a defendant who was convicted of speeding after his cruise control stuck in the accelerate position without warning, Davis tells us that this defendant “had, it seems, an advantage the law-abiding do not have. He operated his car at a speed well above the posted limit.”Punishment, p. 169 (emphasis in original). Yet a driver whose car suddenly and without warning begins speeding faster and faster because of a mechanical defect is likely to be terrified and to seek frantically to slow the vehicle down. Why this experience counts as an “advantage” is certainly not self-evident.
Punishment, p. 239.
Ibid., p. 135.
Ibid., p. 113.
Ibid., p. 135.
Ibid.
Ibid., p. 240.
Ibid., p. 249.
“Unfair Advantage”: 140.
Punishment, p. 246.
See note 15. See also “Unfair Advantage”: 139-40: “A fair-market price [for the license] should be an index of the value of the unfair advantage a criminal takes simply by committing a particular crime.” One might ask why Davis supposes that the price of a hypothetical crime license measures the unfair advantage taken by the corresponding crime. He appears to assume that one who commits the crime thereby acquires something equivalent to the benefit conferred on a purchaser of the corresponding license. But the license-holder acquires the ability to commit the crime with impunity, and the criminal does not. Some explanation is therefore needed for assuming that crime and license confer equivalent benefits.
“Unfair Advantage”: 140.
“Unfair Advantage” 140; see also notes 29–32 & accompanying text supra.
“Unfair Advantage”: 144.
Punishment, p. 84.
Ibid., p. 222 (emphasis added). See note 16 & accompanying text supra.
Ibid., p. 216. The point is reiterated at p. 239 and in “Unfair Advantage”: 140.
SeePunishment, pp. 114-16, concluding that the number of licenses to attempta given crime should be proportioned to the number of licenses to committhat crime.
This is true, for example, in my native state of New York, my current home, California, and Davis's home state, Illinois. See NY Penal Law § 110.00; Cal. Penal Code § 664; 720 ILCS 5/8-4(a).
Punishment, p. 113.
“As I imagined the market, society offers only a certain number of licenses for each crime. The number is determined by the amount of that crime the society is willing to tolerate.” “Unfair Advantage”: 146.
Punishment, p. 135.
Ibid., p. 66.
Observe also that Davis describes theselling of licenses as producing “social disorder.” One would think, rather, that what generates such “disorder” is the actual commission of crimes - the use, not merely the sale or the purchase, of the crime licenses. Presumably there will often be a significant lapse of time between sale and use; this could further complicate efforts to adjust the supply of new crime licenses, since it would not be the amount lastsold that has produced the current level of social disorder.
Punishment, pp. 111, 244-45; “Unfair Advantage”: 150-51.
R. A. Duff, “Auctions, Lotteries, and the Punishment of Attempts,”Law and Philosophy 9 (1990): 12–13.
“Unfair Advantage”: 150-51. In his text Davis presents (1) and (2) as alternatives, while his note 24 presents (1) and (3). It is not clear whether Davis actually intended to offer three rather than two alternatives or whether he meant (2) and (3) to express the same idea.
Ibid., p. 151.
It is not the only reason: someone with no intention of committing any crime might buy such a license as an investment (“Unfair Advantage”: 140) or to keep it out of a would-be criminal's hands (Punishment, p. 240).
Punishment, p. 244. It would also make it difficult to understand why the authorities of Davis's imaginary society would sell any crime licenses at all, since refusing to sell licenses would do away with crime entirely.
Ibid. at p. 244; also see pp. 60, 238.
Ibid., p. 244.
Ibid.
Ibid., p. 111.
Ibid., p. 246.
Ibid.
Ibid., p. 245.
Indeed, Davis takes the position that inflicting a penalty on one who voluntarily and knowingly risked it is automatically justified only if the penalties in question “were in fact set by a free market” (ibid., p. 85) -but that is preciselynot how the penalty for “poaching” is set in Davis's hypothetical society.
Davis, though not addressing the moral justification of punishment as a practice, would agree: “The principle of just punishment forbids us to punish a criminal more severely than the crime deserves”; desert is to be measured by “the crime's seriousness”; and seriousness in turn is measured “by the unfair advantage the criminal gets” from the crime. Ibid., p. 163.
Recall that the price of the hypothetical license is an “index” or “gauge” of the unfair advantage the crime generates. Ibid., pp. 106, 241; “Unfair Advantage”: 139-40.
Punishment, p. 60.
Ibid., p. 85; see also p. 163.
Indeed, when Davis himself applies his market model, he does so either to obtain a bare ranking of “relative seriousness” of the corresponding proper punishments, or at most to obtain crude qualitative comparisons of seriousness or proper punishment. Examples of bare rankings include his demonstrations that vehicular homicide is properly punished less than involuntary manslaughter, ibid., pp. 60–61, and that the seriousness of causing a given harm varies in the usual way with the actor's mental state, pp. 166-68. Examples of qualitative comparisons are Davis's conclusions that attempts should receive “substantially less” punishment than the corresponding completed offenses, p. 116, and that recidivists can properly be punished more than first offenders only if the extra punishment is “no more than a small fraction of the punishment for the triggering offense,” p. 139.
1983 Cal. Star. 941 raised from six to eleven years the “upper term” for voluntary manslaughter - the term to be imposed if the sentencing judge finds aggravating factors that merit a departure from the ordinary manslaughter term.
Scheid, supra note 18, at 161-63. Indeed, inability to specify how much punishment any given crime deserves has been a stock objection to retributivism generally. Dolinko, “Three Mistakes of Retributivism,”UCLA Law Review 39 (1992): 1636. The article in which Davis first set out his market model was written precisely to answer this criticism. SeePunishment at 69–70.
“Unfair Advantage”: 143-44, n. 20.
The only aspect of Davis's theory so far discussed is his explication of “unfair advantage,” which is supposed to yield a ranking of crimes but does nothing, itself, to specify penalties for any crimes. Davis links crimes and penalties by his “seven-step method,” a critique of which forms section III of this article.
Punishment, p. 234.
Ibid., p. 84.
Though Davis lacks convincing grounds for believing that licenses for more serious crimes willgenerally be “priced” higher than those for lesser crimes, he does provide a number of special arguments to deal with particular examples, such as those cited in note 68 above concerning attempts, mental states, and vehicular homicides. These special arguments, however, have a rather ad hoc quality. For example, Davis argues that it is “obvious” that “a license to commit vehicular [homicide] would not be worth as much as a license to commit involuntary manslaughter”: this would be true “because (and just insofar as) a license to commit involuntary manslaughter in any way whatever is more useful than a license to commit it in only this particular way, by use of a vehicle.” Ibid., p. 60. He adds that requiring the manslaughter to be committed with a vehicle “would reduce the value of a license . . . because committing involuntary manslaughter with a vehicle is inherently more risky than committing it in . . . other ways.” Ibid. Should it not be equally obvious, by the same logic, that a license to commit murder of a police officer would be worth less than a license to commit murder simpliciter? The latter is more “useful” than a license to murder only one particular kind of victim. And murder of a police officer is quite likely more risky than murder in general - police are armed; they frequently travel in pairs; and they will expend greater efforts to catch a “cop-killer” than they do to apprehend garden-variety murderers. Why, then, is it almost always the case that murder of a police officer receives greater punishment than that for murder in general?
“Unfair Advantage”: 148.
Dolinko, supra note 70, at 1639-40.
“Unfair Advantage”: 138 (brackets in original).
Punishment, p. 78.
Ibid., p. 79.
Ibid.
Ibid., p. 80.
Ibid., p. 79.
Ibid., pp. 80–81.
Ibid., p. 79.
Ibid., p. 80. Two different crimes of the same type, like burglary and blackmail, may end up “in the same rank,” with neither more serious than the other, if “there is no general reason . . . for rational persons to prefer to risk one rather than the other.” Ibid., p. 81.
Ibid., p. 79.
Ibid., p. 81.
Ibid., p. 79.
Ibid., p. 81.
Ibid.
Ibid., p. 85.
Ibid., p. 66.
Ibid., p. 129.
Ibid., p. 66.
See John Braithwaite & Philip Pettit, Not Just Deserts (Oxford University Press, 1990), p. 150. Most recently, Davis has replaced his earlier insistence that the least serious crime receive the least severe penalty with the more relaxed requirement that “the crime ranked lowest receives a penalty lower than most other crimes receive.” “Unfair Advantage”: 140. He neither explains why he has made this change nor even acknowledges that anything has been changed, however, and we're not told whether a corresponding change is to be made to the earlier requirement that the most serious crime receive the most severe penalty.
Punishment, p. 77.
Ibid., p. 80.
Ibid.
Davis recently formulated his criterion for “typing” crimes in terms ofmotive: two crimes are of the same type if “they are both acts a potential criminal with a certain motive could choose (under normal circumstances).” “Unfair Advantage”: 144. That formulation again suggests grouping premeditated murder and battery together, since a potential criminal with the motive of hurting or physically harming a victim could choose either to beat or batter the victim or to kill him.
Ibid., p. 154, n. 30.
As one Washington, D.C. street criminal observed in his tape-recorded reminiscences, “most good hustling dudes, especially with robbing experience, they never go out to hurt people. The main thing is getting what you're after and getting away.” John Allen,Assault With a Deadly Weapon (New York: Pantheon Press, 1977), p. 184.
See text accompanying note 86 supra.
Perhaps we are to rank such crimes by asking, for example, whether we would rather live in a society with gambling or in one with an equal amount of prostitution. (But how are we to measure the “amount” of gambling and the “equal amount” of prostitution?)
Punishment, p. 81.
“Unfair Advantage”: 146.
Punishment, p. 120, n. 15.
He believes he can demonstrate that attempts must be ranked below the corresponding completed crimes and that crimes differing only in mens rea should end up ranked in the usual way - intentionally inflicting a certain harm higher than doing so recklessly, doing it recklessly higher than doing it negligently, and negligent infliction of the harm higher than strict liability for the harm.
See text at note 86 supra.
Punishment, p. 81. Does this mean blackmail and burglarydo get compared - namely, they turn out to be of equal rank? If so, it will turn out that large numbers of crimes have to be of equal rank. It seems impossible, for instance, to decide whether a rational person would fear any of the following more than the others - trading stock on inside information, bribing a mine-safety inspector, possessing an ounce of cocaine, burning a cross on the lawn of black newcomers to a previously all-white neighborhood, and attempted jury tampering. Do we really want a theory that insists that, therefore, all of these crimes must receive equal punishment? Burglary and blackmail, for example, are not punished equally in California: residential burglary gets two, four, or six years imprisonment while blackmail gets only two, three, or four years. See Cal. Penal Code §§ 460(a), 461, 519, and 520.
See text accompanying note 83 supra.
“Unfair Advantage”: 146.
Ibid., p. 133.
Kant, for example, believed retributivism required strict “equality” between the punishment visited upon the criminal and the evil he inflicted on his victim.The Metaphysical Elements of Justice (Indianapolis: Boobs-Merrill, 1965), p. 101. Modern-day retributivists more commonly assert that punishment must be proportional to the evil or gravity or seriousness of the crime. Andrew Von Hirsch, for example, in a book Davis cites as substantially contributing to the contemporary ascendancy of retributivism (Punishment, p. 5), adopts the “familiar principle” that “Severity of punishment should be commensurate with the seriousness of the offense.”Doing Justice (New York: Hill and Wang, 1976), p. 66 (emphasis omitted). Other examples include C. W. K. Mundle, “Punishment and Desert.”Philosophical Quarterly 4 (1954): 221; K. G. Armstrong, “TheRetributivist Hits Back,”Mind 70 (1961): 486; Michael Moore, “The Moral Worth of Retribution,” in Ferdinand Schoeman (ed.),Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press, 1987), p. 180; and Igor Primoratz,Justifying Legal Punishment (Atlantic Highlands, N.J.: Humanities Press International, 1989), p. 12.
Von Hirsch's influential book, for example, proposed assigning crimes to “[g]raded levels of seriousness,” with a “p presumptive sentence” for each specified level of seriousness. Von Hirsch, supra note 114, pp. 99–100. The idea was adumbrated at least a early as J. D. Mabbott's classic paper “Punishment”,Mind 48 (1939): 162 which suggested that “we can grade crimes in a rough scale and penalties in a rough scale, and keep our heaviest penalties for what are socially the most serious wrongs.” See D. J. Galligan, “The Return to Retribution in Penal Theory,” inCrime, Proof and Punishment: Essays in Memory of Sir Rupert Cross (London: Butterworths, 1981). p. 165; Wojciech Sadurski,Giving Desert Its Due (Dordrecht: D. Reidel, 1985), p. 238; C. L. Ten,Crime, Guilt and Punishment (Oxford: Oxford University Press, 1987), p. 154; and Nigel Walker,Why Punish? (Oxford: Oxford University Press, 1991), pp. 101-3.
See, e.g., John Braithwaite and Philip Pettit, supra note 96, pp. 148-50; Hugo Bedau, “Retributivism and the Theory of Punishment,”Journal of Philosophy 75 (1978): 611; and S. I. Benn, “An Approach to the Problems of Punishment,”Philosophy 33 (1958): 335-37.
I would like to thank the members of the Los Angeles law and philosophy discussion group, and especially Stephen Munzer and Seana Shiffrin, for their helpful comments on an earlier draft of this article.
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Dolinko, D. Mismeasuring “unfair advantage”: A response to Michael Davis. Law Philos 13, 493–524 (1994). https://doi.org/10.1007/BF02350481
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DOI: https://doi.org/10.1007/BF02350481