Abstract
I examine two related ideas about the role of desert judgments which say, roughly, that, if a punishment is undeserved, it is impermissible to impose it. These can both be taken to claim that desert is a ‘limiting condition’ on the pursuit of consequentialist aims. I discuss what considerations are supposed to support an offender’s desert claim. I first examine the major divide between contemporary retributivist theories: those that take an offender’s desert to supervene only on culpability considerations, and those that take an offender’s desert to supervene on culpability considerations, and (roughly) the amount of harm her offense caused. I then look more closely at what sorts of facts fall into the categories of culpability and harm. We can see at the conceptual level that the conceptions of desert previously sketched give us reason to believe that an offender’s desert does not set a plausible upper limit on the severity of her punishment. If we ‘extend’, as I say, conceptions of an offender’s desert in order to get a clearer idea of the amount of punishment she deserves in certain cases, we see that the two types of retributivist theory have serious, and connected, difficulties in setting the limit. The conclusion I reach is this: it is unclear that desert is a limiting condition.
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Notes
The expression occurs in Paton’s translation of Kant, but not with regard to punishment. Immanuel Kant, Groundwork of the Metaphysic of Morals, H.J. Paton (trans.), New York: Harper and Row (1956): p. 98; cp. pp. 96, 104. Barbara Herman seems to have introduced the expression into contemporary moral philosophy in her paper of 1981, reprinted in The Practice of Moral Judgment, Cambridge, MA: Harvard University Press (1993): pp. 13–15. The earliest use of the phraseology and its application to desert that I know of occurs in Michael Moore’s paper of 1982, reprinted in Placing Blame, Oxford: Oxford University Press (1997): p. 93. The concept of desert as a limiting condition appears in other words in works on punishment. It is sometimes said that H.L.A. Hart endorses it in Punishment and Responsibility, Oxford: Oxford University Press (1967): p. 237. See e.g., Richard Frase, Just Sentencing, Oxford: Oxford University Press (2013): p. 87. This attribution is incorrect. Hart merely mentions the idea in passing. The claim is described, but not endorsed by J. L. Mackie as a “quantitative” form of “negative retributivism” in “Morality and the Retributive Emotions”, Criminal Justice Ethics 1 (1) (1982): pp. 3–10, at 4. This idea is structurally similar to W.D. Ross’ claim that wrongdoers extinguish or forfeit those rights of the victims that they have violated. See note 31 below.
Norval Morris, Madness and the Criminal Law, Chicago: University of Chicago Press (1982): pp. 179–209. See also Frase, op. cit., pp. 82–84. Frase modifies Morris’ theory. Frase, op. cit., pp. 24–38; 85. See Frase, op. cit., pp. 88–95, for other writers thinking along lines similar to his theory. Cp. Douglas Husak, The Philosophy of Criminal Law, Oxford: Oxford University Press (2010): pp. 399, 409.
Morris nonetheless opposed mandatory minimum sentencing laws. Frase, op. cit., 84.
Frase, op. cit., pp. 25–31.
Frase, op. cit., pp. 26–27.
We will thus be examining types of traditional deontological retributivism. We will not examine the consequentialist versions of retributivism in Shelly Kagan, The Geometry of Desert, Oxford: Oxford University Press (2015), or versions of the ‘fair play’ theory that are usually described as a form of retributivism. Variants of the latter approach scale punishments according to how much an offender benefits, as compared to the law-abiding, rather than according to how much the victim loses, or how culpable the offender is. So they raise questions distinct from the ones examined here. See David Boonin, The Problem of Punishment, Cambridge, Eng.: Cambridge University Press (2008): pp. 119–143. See also n. 31 below on W.D. Ross’ ‘weak retributivism’, which is not based on the concept of desert.
Moore, op. cit., pp. 739–795. Cp. R.A. Duff, Punishment, Communication, and Community, Oxford: Oxford University Press (2001): pp. 60–64.
Thomas Nagel, Mortal Questions, Cambridge. Eng.: Cambridge University Press (1979): pp. 24–32.
Kant, op. cit., p. 62.
Larry Alexander, Kimberly Ferzan, and Stephen Morse, Crime and Culpability, Cambridge, Eng.: Cambridge University Press (2009).
Moore, op. cit., pp. 192–193, 246–247.
Immanuel Kant, The Metaphysics of Morals, Mary Gregor (trans.), Cambridge, Eng.: Cambridge University Press (1991): 140–142. Note how Kant’s philosophy of punishment is deeply at odds with a central claim in his moral philosophy. Generalizing what he says in Kant, Groundwork, op. cit., p. 62, we seem to get T1, as Nagel suggested.
John Kleinig, Punishment and Desert, The Hague: Martinus Nijhoff (1973): pp. 116–117. Kant considers a few examples that pertain to culpability, in puzzling ways (Kant, Metaphysics, op. cit., pp. 60–61, 142–143, 144–145). But he does not treat the subject systematically.
Paul Robinson, Intuitions of Justice and the Utility of Desert, Oxford: Oxford University Press (2013): pp. 385–393.
Douglas Husak, “‘Broad’ Culpability and the Retributivist Dream”, Ohio State Journal of Criminal Law 9(2) (2012): pp. 449–485; David Brink (manuscript) “Two Kinds of Culpability,” http://davidobrink.com/sites/default/files/work-in-progress/TwoKindsLaw_0.pdf.
E.g., John Fischer, and Mark Ravizza, Responsibility and Control, Cambridge, Eng.: Cambridge University Press (1998).
Larry Alexander, “Culpability”, in J. Deigh and D. Dolinko, (eds.), The Oxford Handbook of Philosophy of Criminal Law, Oxford: Oxford University Press (2011): pp. 218–238, at 228.
Alexander, Ferzan, and Morse, op. cit., pp. 69–86.
R.A. Duff, “The Intrusion of Mercy: Mercy and Clemency”, Ohio State Journal of Criminal Law 4(2) (2007): pp. 361–387, at 384; Julian Roberts, Punishing Persistent Offenders, Oxford: Oxford University Press (2008): pp. 74–78.
Note that only Type 1 and Type 2 theorists could even suppose that an offender’s record is relevant to her desert, since both accept that culpability considerations are relevant to desert. The issue for both is whether a record somehow indicates greater culpability on the offender’s part. Type 3 theorists claim that only harm is relevant to an offender’s desert. Therefore, even if her record indicates increased culpability that cannot alter her desert.
J. Roberts, and A. von Hirsch, (eds.), Previous Convictions at Sentencing, Oxford: Hart Publishing (2010); Frase, op. cit., pp. 180–198.
Frase, op. cit., pp. 198–208.
Fischer, and Ravizza, (op. cit., pp. 170–239) claim that some of the psychological components of moral responsibility itself have a historical dimension, so that a time-slice description of the capacities of an agent at the time of action are insufficient to establish if she is morally responsible for it. If true, this claim would introduce a further historical dimension to desert.
This may be said to involve the ‘accordion effect’, widening the dimensions of her action. Joel Feinberg, Doing and Deserving, Princeton: Princeton University Press (1970): pp. 133–134.
See, e.g., Andrew von Hirsch, Past or Future Crimes, New Brunswick: Rutgers University Press (1985): p. 128f.
Frase, op. cit., p. 187; cp. Morris, op. cit., p. 186, on the irrelevance of the “level of crime”.
W.D. Ross, The Right and the Good, Oxford: Oxford University Press (1930), pp. 56–57.
Ross, op. cit., p. 61. Cp. Hart, op. cit., pp. 17–19; 20.
Frase, op. cit., pp. 181–187.
Frase, op. cit., pp. 188–198.
Alan Goldman, “The Paradox of Punishment”, Philosophy and Public Affairs 9(1) (1979): pp. 42–58, at 48–49. Goldman’s own position resembles limiting retributivism. He endorses the standard found in Ross (op. cit., pp. 56–64) to set a limit on the severity of punishment, and accepts (as Ross does) the pursuit of crime reduction within that limit. Ross asserts that if a person violates a right of a victim, then she “extinguishes” (that is, forfeits) that right, so that society may impose burdens on her that would otherwise be wrong. However, Ross himself does not think of this limit as established by the offender’s desert, and in fact he rejects the notion that the state should attempt to give people what they deserve. Goldman, in contrast, sometimes speaks as if the limit on severity is established by the wrongdoer’s desert (Goldman, op. cit., pp. 44 n. 4, 46).
Cp. Frase, op. cit., p. 124.
Feinberg, op. cit., pp. 56, 85–87. Cp. Goldman, op. cit., pp. 54–55.
Cp. Goldman, op. cit., p. 55.
Frase, op. cit., pp. 189–195.
Frase, op. cit., p. 112. Cp. pp. 14, 26–27, 37–38. Frase does not explicitly take a position on the basic question of whether a Type 1 or Type 2 conception of desert is correct. But the response that he gives to the problem under discussion is available to a theorist of either type.
Moore, op. cit.; Alexander, Ferzan, and Morse, op. cit. These authors assert that desert considerations favor punishment, so that desert is not only a limiting condition. But they accept that it is a limiting condition.
Moore, op. cit., pp. 105–110; 159–187.
Kant (Metaphysics, op. cit., pp. 143, 169) asserts that a criminal cannot complain if her punishment subjects her to the same loss as she imposed on her victim. In both passages, Kant is addressing the idea of desert as a limiting condition, since he is replying to the suggestion that such a punishment is too severe. Kant surely is assuming that the victim’s loss (for example, of life) was intentionally and culpably produced. If, say, a homicide was reckless or negligent, the murderer’s complaint would be plausible. Equally, the claim in Ross (op. cit., p. 60) that criminals “extinguish” (or forfeit) the rights that they have violated is only plausible for intentional or knowing culpable violation of rights. Finally, there is the formula in Robert Nozick’s work that states that a wrongdoer’s deserved punishment can be represented by the expression ‘r x H’. ‘H’ represents the amount of harm to the victim and ‘r’ represents the wrongdoer’s responsibility (presumably, culpability). Robert Nozick, Anarchy, State, and Utopia, New York: Basic Books (1974): pp. 59–63; Robert Nozick, Philosophical Explanations, Cambridge, Mass: Harvard University Press (1981): pp. 363–397. Nozick seems to assume that if an offender culpably intends to produce H amount of harm to a victim, and no more, and does produce H amount via proximate causation, then r = 1. This means that the amount of the wrongdoer’s punishment should equal the amount of harm she intentionally inflicted on her victim, that is, H (cp. Ibid., p. 363). However, Nozick later suggests that ‘H’ might be taken to represent the degree of wrongdoing, which can be interpreted in various ways (Ibid., pp. 388–389). See also George Fletcher, Rethinking Criminal Law, Boston: Little Brown (1978): pp. 461–462.
Andrew von Hirsch, Censure and Sanctions, Oxford: Oxford University Press (1993): p. 38.
Morris, op. cit., p. 183, says that desert “rarely [would] tell us the exact sanction to be imposed”.
Cp. the example in C.L. Ten, Crime, Guilt, and Punishment, Oxford: Oxford University Press (1987): pp. 143–144.
But see Jeremy Waldron, “Lex Talionis”, Arizona Law Review 34(1) (1992): pp. 25–51.
I am indebted to George Sher, Justin Fisher, Eric Barnes, Steve Hiltz, Brad Thomson, Luke Robinson, Kirsten Egerstrom, Ken Daley, and an anonymous referee for useful comments and suggestions.
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Sverdlik, S. Desert as a Limiting Condition. Criminal Law, Philosophy 12, 209–225 (2018). https://doi.org/10.1007/s11572-017-9422-0
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DOI: https://doi.org/10.1007/s11572-017-9422-0