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Constructing a Theory of Punishment, Desert, and the Distribution of Punishments

Published online by Cambridge University Press:  09 June 2015

Don E. Scheid
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Punishment, by definition, involves the intentional imposition of some deprivation or suffering on individuals against their wills. On any moral view, there is a very strong presumption against doing this to people; so, if a society has an institution of punishment, some justification is needed. On the face of things, such an institution would seem to be an evil. What, then, is the justification for punishment? And once this question has been raised, related questions arise. Who should be punished and how severely? And what principle or principles should we use when setting up sentencing guidelines? Any adequate theory of punishment must provide some guidance, some useful headings, even if not a detailed chart, for answering these questions, among others.

In this paper, I outline a theory of punishment that I believe best answers these sorts of questions. Inevitably, some parts are far sketchier than others; but within the general outline, the major focus is on the concept of desert and on the application of desert principles in determining the just allotment of punishments. This leads to a framework for constructing a crimes/punishments schedule for sentencing. Along the way, a number of lesser issues are discussed as well.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 10 , Issue 2 , July 1997 , pp. 441 - 506
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Copyright © Cambridge University Press 1997

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References

1. Throughout this paper, I am speaking of legal punishment. There may be various kinds of punishment. The word “punishment” is certainly used in many different contexts. We speak of a parent punishing a child, of the school principal punishing the student, of God punishing sinners, of tyrants punishing their enemies. We speak of a boxer taking heavy punishment from his opponent and of the coastal town being punished by the hurricane. There may or may not be a core definition of “punishment” for all of these and other uses of the word. But an analysis of the general concept of punishment is not to my purpose here. I have taken up the question of definition in an earlier paper: Don E. Scheid, “Note on Defining ‘Punishment’” (1980) X Can. J. of Phil. 453.

Without arguing for it, I offer the following, more formal definition of “punishment” in the sense of legal punishment that is relevant to this paper.

“Punishment” means:

(1) the imposition of some deprivation, hard treatment, suffering or other unpleasantness beyond mere censure or social stigma (and other than whatever unpleasantness may be involved in compensation to victim).

(2) on an offender,

(3) for his commission of an offense,

(4) deliberately administered by an agent or agents other than the offender himself,

(5) who condemn the offender for his committing the offense, and who intend to convey this condemnation at least to the offender,

(6) this or these agent(s) having authority from the institution whose regulations define the offense.

As will be seen, this definition, with some modifications, follows the standard Flew-Benn-Hart definition. See, generally, Antony Flew, “The Justification of Punishment” (1954) 29 Philosophy 291; Stanley I. Benn, “An Approach to the Problems of Punishment” (1958) 33 Philosophy 325; H.L.A. Hart, “Prolegomenon to the Principles of Punishment” in Punishment and Responsibility (New York and Oxford: Oxford University Press, 1968) at 1.

2. The theory presented here addresses itself to the justification of “punishment” in the generic sense. That is, it seeks to justify a social institution that is designed to threaten and impose hardship or suffering on offenders for their offenses, and so on (see the fuller definition of punishment at ibid.). This is to be contrasted with theories that seek to justify a particular species of punishment. For instance, some theorists may argue that only punishment that rehabilitates or reconciles the offender and victim can be justified, or that only punishment that incapacitates is justified. The theory presented here is a theory about “punishment” in its general legal meaning. This is not to say that just any form of punishment is to be justified, such as torturous punishments in dungeons. Rather, the theory presented here seeks to justify punishment in so far as it is the imposition of suffering or hardship on an offender for an offense, and so on.

3. Customarily, a theory of punishment would be expected to address at least the following questions: (a) What is the definition of “punishment”? (b) What is the justification for having a system or institution of punishment at all? (c) Who should be punished? (d) How much should offenders be punished, or how should a crimes/punishments schedule be determined? (e) How much punishment should this particular offender receive? In this paper, I address (b), (c) and (d).

Question (e) concerns issues of sentencing and would include issues about aggravation and mitigation in sentencing, whether and under what circumstances the convict’s motivation should be considered, the proper role of mercy, how external factors such as prison crowding or hardship to a convict’s family should be handled, whether a convict’s prior record should count, how much the convict’s age or health should influence the sentence, and so on. There are a book’s worth of issues here, but I do not address any of them in this paper.

Beyond these customary questions, I believe there are at least two additional questions that should be answered in any complete theory of punishment, namely: (0 What is the justification for the state employing a system of punishment, rather than individuals or other social groups? In other words, what is the justification for the state’s authority to employ a system of punishment; or who has the authority to punish and why? (h) What should be the grounds for pardons? On these two questions, see Kathleen Dean Moore, Pardons (New York and Oxford: Oxford University Press, 1989).

4. Cesare Beccaria, On Crimes and Punishments, trans. Henry Paolucci (Indianapolis and New York: Bobbs-Merrill Co., 1963); Jeremy Bentham, An Introduction to The Principles of Morals and Legislation (Darien, CN: Hafner, 1970); G. W. F. Hegel, Hegel’s Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1967); Immanuel Kant, The Metaphysical Elements of Justice, trans. John Ladd (Indianapolis and New York: Bobbs-Merrill, 1965).

5. The problems in justifying punishment have been discussed extensively in legal and philosophical literature. Two good survey articles, which together suggest the range of the literature, are the following: Stanley I. Benn, “Punishment” in 7 The Encyclopedia of Philosophy (New York: Macmillan and Free Press, 1967) at 29; Kent Greenawalt, “Punishment” in 4 Encyclopedia of Crime and Justice (New York: Free Press, 1983) at 1336. Both contain useful bibliographies.

6. As H.L.A. Hart notes, the retributivist view holds that the addition of the offender’s suffering (by punishment) to that of the victim is better than the suffering of the victim alone. But this seems a strange moral alchemy, making two instances of suffering into a good. H.L.A. Hart, Punishment and Responsibility (New York and Oxford: Oxford University Press, 1968) at 234–35.

For some, the implication of retributivism appears to be that creating criminals and then punishing them fully would be a better world than one in which some crimes went unpunished. But I do not believe this is a necessary implication of even pure retributivism. The retributivist is not for creating any crimes, punished or otherwise. He need only hold that (/there are any crimes, then it is better that they be punished than that they go unpunished. Hugo Bedau expresses this objection when he says:

It is too rarely noticed that retributivists in principle are fundamentally indifferent between the state of the world in which there is no crime, and the state of the world in which there is a wide variety of horrible crimes each of which is punished fully and exactly as retribution requires. Depressing the crime rate is no concern of the retributivist….

Hugo Adam Bedau, “Concessions to Retribution in Punishment” in Cederblom & Blizek, eds., Justice and Punishment (Cambridge, MA: Ballinger, 1977) at 69.

But Bedau’s objection is not fair to retributivists. Even a pure retributivist can hold a consistent set of priorities according to the following: (a) best is a state of affairs in which there are no crimes; (b) second best is where, whenever there are crimes, they are punished; and (c) worst is where there are crimes that go unpunished. The retributivist clearly can prefer (a) over (b), contrary to Bedau—even if he must also prefer (b) over (c), as the previous objection notes.

7. H.L.A. Hart, “Prolegomenon to the Principles of Punishment” reprinted in Hart’s Punishment and Responsibility, supra note 6. The paper was first delivered as the Presidential Address to the Aristotelian Society in October 1959.

8. Without any pretense at being complete, a list of contemporary writers who adopt some sort of combination theory would include the following:

Michael Davis, To Make the Punishment Fit the Crime, (Boulder, CO: Westview Press, 1992).

Hyman Gross, A Theory of Criminal Justice (Oxford and New York: Oxford University Press, 1979).

H.L.A. Hart, Punishment and Responsibility (New York and Oxford: Oxford University Press, 1968).

Marvin Henberg, Retribution: Evil for Evil in Ethics, Law, and Literature (Philadelphia: Temple University Press, 1990).

Andrew von Hirsch, Censure and Sanctions (Oxford: Clarendon Press, 1993).

Nicola Lacey, State Punishment (London and New York: Routledge, 1988).

Norval Morris, Madness and the Criminal Law (Chicago: University of Chicago Press, 1982).

Norval Morris and M. Tonry, Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System (New York and Oxford: Oxford University Press, 1990).

Jeffrie G. Murphy, “Retributivism and the State’s Interest in Punishment” in J. Roland Pennock & John W. Chapman, eds., Criminal Justice: NOMOS XXVII (New York: New York University Press, 1985).

Herbert L. Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968).

Edmund L. Pincoffs, The Rationale of Legal Punishment (New York: Humanities Press, 1966).

John Rawls, “Two Concepts of Rules” (1955) 64 Phil. Rev. 3.

Paul H. Robinson, “Hybrid Principles for the Distribution of Criminal Sanctions” (1988) 82 Northwestern U. L. Rev. 19.

David Ross, The Right and the Good (Oxford: Oxford University Press, 1973).

C. L. Ten, Crime, Guilt, and Punishment (Oxford: Clarendon Press, 1987).

9. Michael Davis, To Make the Punishment Fit the Crime, ibid.; J. G. Murphy, “Marxism and Retribution” (1973) 2 Phil. & Publ. Affairs 217; Wojciech Sadruski, Giving Desert Its Due (Dordrecht: D. Reidel, 1985); George Sher, Desert (Princeton, NJ: Princeton University Press, 1987).

10. Andrew von Hirsch, Censure and Sanctions (Oxford: Clarendon Press, 1993); Past or Future Crimes (New Brunswick, NJ: Rutgers University Press, 1985); Doing Justice (New York: Hill and Wang, 1976).

11. William K. Frankena, for example, holds a pluralist moral theory in his book Ethics, 2d ed. (Englewood Cliffs, NJ: Prentice-Hall, 1973). See especially his discussion in chapter three at page 46, where he maintains that an adequate moral theory must have at least two distinct, basic principles: “I propose, then, that we take as the basic premises of our theory of right and wrong two principles, that of beneficence and some principle of just distribution.”

12. On this point, see for example, Joel Feinberg, “Justice, Fairness and Rationality” (1972) 81 Yale L. J. 1004 at 1006. Feinberg sets out the following possible relations between justice and utility:

1. Individual justice and social utility,…, can never conflict. That is because “justice is a name for certain moral requirements, which, regarded collectively, stand higher in the scale of social utility, and are therefore of more paramount obligation, than any others….”

2. Individual justice and social utility do sometimes conflict, and when they do, so much the worse for individual justice.

3. Individual justice and social utility do sometimes conflict, and when they do, so much the worse for social utility.

4. Individual justice and social utility do sometimes conflict, but it is impossible in advance to say that one must always have a stronger claim than the other. These opposing irreconcilable claims can only be “balanced” against each other in the concrete circumstances of their conflict.

Feinberg favors the last relationship listed, as do I—except that I believe we can do better than a mere “balancing” when we come to the integration of moral principles in the structuring of a social institution.

13. An article by Edward Strong provides one example of this “composite approach.” Strong takes his lead from William Frankena’s view that there are at least two basic principles of morality. According to Strong, utilitarian and retributivist principles are autonomous and neither takes precedence over the other. Strong holds that utilitarianism and retributivism each appropriately apply to punishment, and neither can reasonably be discarded. Thus, he tells us, we should seek “to comply with both principles as far as possible,” recognizing that there will be “hard choices” in particular situations where the principles conflict. Unfortunately, when the principles in question are in conflict, “complying with both principles as far as possible” gives us little guidance. “Hard choices” are occasions in which the principles offer no real determination at all; choice is left to discretion or intuition. Edward W. Strong, “Justification of Juridical Punishment” (1969) 79 Ethics 187.

14. It would appear that the assignment of weights or numerical values must be made on an intuitive basis also, or that a meta-principle(s) is required that establishes the relative importance of the competing principles. If a meta-principle is to be employed, it will have to be some sort of sliding scale (or perhaps some broader theory may be necessary) to be able to assign different relative values to the same principles when they are applied in different contexts.

15. David Ross, The Right and the Good, supra note 8 at 61.

16. Ibid, at 60.

17. Ibid.

18. Ibid, at 62.

19. Ibid, at 62–63, emphasis added.

20. A further prima facie duty comes into play at this point in Ross’s account of punishment, namely, the duty of promise keeping. Once a schedule of punishments has been determined by the legislature in terms of considerations about what is the just punishment and what is expedient, the administrator of the law (judge) should not have to consider these issues further. Once the penalties are fixed by law, a given, stipulated penalty and no other should be imposed simply because that is the penalty that is promised. The promise is not to the criminal, but to the victim and to society generally. It promises to the victim that the offender will not go scot-free, and it promises to society the degree of protection against further offenses which punishment provides. Furthermore, the criminal-justice system makes the promise to citizens that if they do not commit any of the prohibited conduct, they will not be punished (ibid, at 63–64).

Thus, Ross accounts for the retributivist’s feeling that there is an obligation to punish by pointing to the promise made by the criminal code. As such, the obligation to punish presupposes an institutional setting and only arises once a system of punishment is in place.

21. Robert Nozick recognizes this difference in types of principles, characterizing the principles involved as those that stipulate goals and those functioning as side constraints. See Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974) at 28–29.

22. Hart himself recognizes two possible forms of compound theory that he seems to reject. One theory would have pure retributive principles apply to all crimes mala in se, while mainly utilitarian or deterrent considerations would determine punishments for “quasi-crimes,” that is, crimes mala prohibita. A second theory would use retributive principles to determine who was “punishment-worthy” and by how much, but whether an offender should actually be punished would be decided by the effects punishment would likely have on the offender or the fabric of law and morality in the society generally. Punishment and Responsibility, supra note 6 at 236–37.

23. The distinction is presented in H.L.A. Hart’s “Prolegomenon to the Principles of Punishment” in Punishment and Responsibility, supra note 6 at 9–12.

24. Ibid, at 6.

25. Ibid, at 9.

26. Hart is quite clear about the interaction between the two kinds of principles. He says, for instance:

… out of considerations of fairness or justice to individuals we should restrict even punishment designed as a ‘preventive’ to those who had a normal capacity and a fair opportunity to obey. This is still an intelligible ideal of justice to the individuals whom we punish even if we punish them to protect society from the harm that crime does and not to pay back the harm that they have done. And it remains intelligible even if in securing this form of fairness to those whom we punish we secure a lesser measure of conformity to law than a system of total strict liability which repudiated the doctrine of mens rea.

Ibid, at 201.

27. The possible ambiguity is pointed out in K. G. Armstrong, ‘The Retributivist Hits Back” (1961) 70 Mind 471 at 474.

28. In all of this, I leave open the possibility that there may be grounds for individuals having a prima facie right of private retaliation against their aggressors. My claim is only that retribution for its own sake is not a very plausible rationale for punishment by the state from a social-contract perspective.

29. B. F. Skinner, Walden Two (New York: Macmillan, 1948, 1976).

30. Aldous Huxley, Brave New World (New York: Harper & Row, 1932, 1969).

31. Michael Davis expresses this point nicely when he says:

The criminal law need not establish social tranquillity. It does enough if it holds the commotion of life below a roar. The primary rules need not forbid all conflict between persons or even all undesirable activity. The rules need only forbid the more substantial harms and regulate major conflict. The threatened punishments need not be so frightful that no rational person would risk them. The punishments need only be frightful enough to make crime relatively rare.

Michael Davis, “How to Make the Punishment Fit the Crime” (1983) 93 Ethics 726 at 730.

32. Nevertheless, Hart is certainly well aware of the issue and its problems. See, for example, Punishment and Responsibility, supra note 6 at 162.

33. Ibid, at 163.

34. It is not clear whether Hart regards this as a truly independent principle. Calling the principle “fairness between different offenders” suggests an independent principle of justice, but virtually everything Hart says about the principle suggests he regards it as merely a practical rule of consistency based on utilitarian considerations. He says:

[the principle] has indeed a place as a prima facie principle of fairness between offenders, but not as something which warrants going beyond the requirements of the forward-looking aims of deterrence, prevention and reform …. Fairness between different offenders expressed in terms of different punishments is not an end in itself, but a method of pursuing other aims which has indeed a moral claim on our attention;….

***

It is well that… sacrifices of principles of equality between different offenders should be made only with hesitation and with full explanation;/or there is always great danger that they may be made in moments of panic or without reliable evidence that they will prevent a worse evil.

Ibid, at 172, emphasis added.

35. These alternative renderings may or may not be quite equivalent.

John Kleinig maintains that in saying, “John deserves X,” we can be claiming any of the following, depending on the context:

“John ought to get or suffer X.”

“It would be a good thing to give John X.”

“If John gets or suffers X, he has no grounds for complaint.”

See John Kleinig, “The Concept of Desert” (1971) 8 Am. Phil. Quart. 71 at 71. See also his book, Punishment and Desert (The Hague: Martinus Nijhoff, 1973) at 62.

Joel Feinberg holds that “John deserves X” would mean that John is qualified for X in that John satisfies certain conditions of worthiness. See Joel Feinberg, “Justice and Personal Desert” in Doing and Deserving (Princeton, NJ: Princeton University Press, 1970) at 57.

Both Feinberg and Kleinig regard a desert claim as an appraisal of the person in question, thus, “John deserves X’ is an appraisal of John (Kleinig, ibid, at 76; Feinberg, ibid, at 57). Mindful of G. E. Moore’s idea of organic wholes, one might prefer to view a desert claim as an appraisal of the combination (or state of affairs) of John and X. But nothing in my discussion in this paper will turn on this slight difference in possible focus.

36. Joel Feinberg, ibid, at 58–59.

37. Ibid, at 58.

38. Universal desert claims (claims that refer to everyone) may seem not to imply any desert base: “No one deserves that kind of torture”; “Everyone deserves a second chance”; “Everyone deserves moral respect.” Yet desert bases that everyone happens to have might reasonably be implied: the ability to suffer, human fallibility, or the having of interests.

39. Without claiming to be complete, Feinberg has suggested the following list of the kinds of things (or modes of treatment) that can be objects of desert: (1) awards of prizes, (2) assignments of grades, (3) rewards and punishments, (4) praise, blame, and other informal responses, (5) reparation, liability, and other modes of compensation. Joel Feinberg, supra note 35 at 62.

40. Compensation desert claims might be an exception to this personal-feature condition. Suppose John is injured because of another’s negligence so that he deserves compensation. There is really no personal feature of John as such, nothing that constitutes his self, that provides the basis for his deserving the compensation. John’s desert base is a “personal feature” only in the weak sense that it was John upon whom the negligent injury fell and not someone else. It was simply John, and not someone else, who had the bad luck of being in the wrong place at the wrong time.

That compensation cases require a personal-feature desert base in only the weakest sense is one ground for not considering them central cases of desert. One might reasonably take the view that they are not cases of desert at all (but instead cases of rights and entitlements).

Alternatively, perhaps the correct analysis is to say that John, being a good guy, does not deserve any evil to befall him; and this desert judgment is in virtue of personal features (even moral attributes of good moral character, or whatever). Since evil did befall him, however, he deserves whatever will put him back where he deserves to be—that is, compensation that will make him whole, make him again what he deserves to be, namely, a person who is not suffering an evil.

George Sher agrees with the personal-feature condition and argues that the desert bases will be attributes that constitute die self. But he does not consider this possible problem which deserts of compensation seem to pose. See, generally, George Sher, Desert, supra note 9 at ch. 9.

In spite of the reservations just noted, I believe that the personal-characteristic condition is an important, common feature of the central cases of desert and is essential to the core concept of desert. Feinberg, Kleinig, Pincoffs and Sher all recognize this feature. Besides works previously cited, see Edmund L. Pincoffs, “Are Questions of Desert Decidable?” in Cederblom & Blizek, eds., Justice and Punishment, supra note 6 at 76–77, where he speaks of characteristics that are “revelatory of the agent.”

41. Although I do not regard this as an exception to the same-value condition, we should note that one can have things that are deserved that have no value independently of their being deserved. Blue ribbons, badges and other such tokens of esteem may be deserved because of good characteristics in the individuals who win them. But the badges, ribbons, etc. themselves have no value independently of their symbolic value as badges of merit.

Deserving compensation may seem to be an exception to the same-value condition, since it appears that John deserves compensation (a good) in virtue of his injury or loss (a bad). But, again, the analysis offered at supra note 40, if accepted, would accommodate this. In virtue of his good characteristics, John does not deserve any suffering from injury; but John has suffered an injury; so John deserves compensation that will put him back where he deserves to be.

42. John Kleinig, “The Concept of Desert”, supra note 35 at 73. George Sher, Desert, supra note 9 at 5 and ch. 10.

43. Certain personal desert claims may have a forward-looking aspect, as when we say, “John deserves the scholarship because of his talent and abilities.” The talent and abilities are valued only because of the potential for good work or great artistic performance. We might say that John deserves the scholarship in virtue of his potential and that his potential is a present characteristic. But potentiality is itself, essentially, a forward-looking concept. In the end, we give John the scholarship on the basis of what we believe he (with the aid of the scholarship) will become or the work he will do in future.

Edward M. Wise notes that there is nothing in the concept of desert to preclude considering features of the offender’s character after commission of the offense (assuming a character-based theory of culpability). This may seem surprising; but it is not. The offense itself is an indication of the offender’s character, but so also is his subsequent behavior—especially his own reaction to his offense. Is he sorry for what he did, does he show remorse, etc.? The question at sentencing is what the defendant now deserves, so this does not seem to conflict with the backward-looking condition of desert, desert bases always being only past or present characteristics. See Edward M. Wise, “The Concept of Desert” (1987) 33 Wayne L. Rev. 1343 at 1359.

44. Aristotle recognizes the close connection between just deserts and proportionality, although he does not provide any argument or account as to why we must have proportionality in order for persons to have their just deserts:

Also, there will be the same equality between the persons and the shares: the ratio between the shares will be the same as that between the persons. If the persons are not equal, their (just) shares will not be equal; but this is the source of quarrels and recriminations, when equals have and are awarded unequal shares or unequals equal shares. The truth of this is further illustrated by the principle “To each according to his deserts.” Everyone agrees that in distributions the just share must be given on the basis of what one deserves, though not everyone would name the same criterion of deserving: democrats say it is free birth, oligarchs that it is wealth or noble birth, and aristocrats that it is excellence.

Consequently, the just is something proportionate,….

Aristotle, Nicomachean Ethics, trans. Martin Ostwald (New York: Macmillan, 1962) at Book 5, section 3, 1131a-1131b.

45. A standard pattern of joke plays off of these conditions:

First person, “First prize for the competition is one week in Mudville.”

Second person, “Really (incredulously). What is second prize?”

First person, “Oh, well, second prize is two weeks in Mudville.” Michael Davis notes this in his article “Postscript: In Fairness to Condemnation” (1991) 25 Israel L. Rev. 581 at 582.

Since second prize is more time in Mudville than first prize, one realizes that staying in Mudville is not a treat! Proportion is maintained, since first prize gets less of a bad thing than second prize; but the same-value condition, which we initially assume, is actually absent.

46. The concept of the self will include many of the personal features that operate as desert bases. Sher notes in his book that personal desert claims can only be sustained on the assumptions that (i) the self endures through time (the self deserves something today on the basis of something about the self yesterday) and (ii) the attributes that are the desert bases are part of that self. See Sher, supra note 9 at 151.

47. There is, perhaps, the small immorality (not to say an injustice) of a lie. In bestowing the prize on Joe, the contest officials may, in effect, be understood as saying that Joe is the most handsome of the contestants, which is false.

48. I leave open the question of what the underlying theory of responsibility should be. I believe the criminal law is and ought to be concerned primarily with conduct; but I do not take up the issue in this paper. For a good, recent discussion of whether a “choice theory” or a “character theory,” or some blend of the two is ultimately the best account of responsibility for purposes of the criminal law, see R. A. Duff, “Choice, Character, and Criminal Liability” (1993) 12 Law and Phil. 345.

49. Some writers regard effort as the central desert base for responsibility-desert claims, as it seems to be the only thing under a person’s control and so seems to be the only thing that can properly be praised or blamed, rewarded or punished. While effort is, indeed, a central responsibility-desert base, I am not sure it is the only one for such claims. Stupid efforts are not as deserving of praise as intelligent efforts; and this is because the exercise of intelligence is something else, in addition to the effort itself, that is, to some extent, under a person’s control.

50. Some personal desert claims, of course, may be based on both inherited attributes and a responsibility-desert base. For example, Joan deserves to win the race because she is the best runner, where this is the result of natural talent plus a great deal of training reflective of her persevering character. To the extent that being the best runner is the result of her hard training and/or does reflect on her character, it is a responsibility-desert base; and the desert claim may be regarded as a responsibility-desert claim.

Alan Zaitchik offers another such example:

…if I discover the cure to some dread disease, then it does … bear upon my deserving something in virtue of having done so that I discovered the cure after years of hard work and self-sacrifice (rather than by accident). Whether I could deserve anything for having found the cure quite by accident and effortlessly, while hiking through the woods, is another matter.

Alan Zaitchik, “On Deserving to Deserve” (1977) 6 Phil. & Publ. Affairs 370 at 376.

In the same article (pages 378–79), in connection with “desert for effort,” Zaitchik argues for the possibility of putting in the effort to increase one’s ability to make an effort. He considers the example of a runner who trains so that he is capable of making a greater effort when he runs in a race.

51. James Rachels, “What People Deserve” in John Arthur & William H. Shaw, eds., Justice and Economic Distribution, 2d ed. (Englewood Cliffs, NJ: Prentice Hall, 1991) at 144.

52. I follow Feinberg and others here in regarding the concept of desert and associated principles of desert as generally coming under the heading of justice. See, for example, Joel Feinberg, “Justice and Personal Desert” in Doing and Deserving, supra note 35 at 56.

Rights is certainly another part of justice. James Rachels, for instance, says, “Besides requiring that people be treated as they deserve, justice may also require that people’s rights be respected, which is different,…” (ibid, at 137). See, generally, his excellent article “What People Deserve” in Justice and Economic Distribution, ibid, at 136.

53. In using the phrase “voluntary conduct,” I essentially follow Hart’s use of “voluntary actions” in his “Legal Responsibility and Excuses” in Punishment and Responsibility, supra note 6 at 28:

If an individual breaks the law when none of the excusing conditions are present he is ordinarily said to have acted of ‘his own free will’, ‘of his own accord’, ‘voluntarily’;

Control is the essential idea I have in mind. One may be liable to punishment only for acts, omissions or states of affairs over which one has at least some control. I am in agreement with Husak’s “control principle,” which he introduces in his book Philosophy of Criminal Law (Totowa, NJ: Rowman & Littlefield, 1987). Husak says:

…the control principle states that criminal liability is unjust if imposed for a state of affairs over which a person lacks control.

***

The core idea is that a person lacks control over a state of affairs if he is unable to prevent it from taking place. If the state of affairs is an action, he must have been capable of not performing that action; if it is a consequence, he must have been able to prevent that consequence; if it is an intention, he must have been capable of not having that intention; and so on.

Douglas Husak, Philosophy of Criminal Law, supra note 53 at 98.

54. I am aware that issues concerning such topics as: crimes of voluntary conduct versus strict liability, mens rea, and excusing conditions must take up a major part of any decent theory of punishment. Since this paper is only a sketch of a theory, however, and since my main focus in this paper is on the distribution of punishments and not the question of criminal responsibility, I confine myself to brief remarks here.

55. I believe it is more accurate to regard punishment as a threat system than as merely a price system or system of tariffs, as some have suggested. The purpose of the criminal law is to prohibit certain conduct. And prohibiting conduct should be distinguished from other legal devices for channeling behavior, such as, tort and contract law which usually require only compensation. Suppose, for example, by fraud or in some other way, a man takes a car that is not his. Tort or contract law may require him to compensate the owner, implementing a kind of “forced sale.” In contrast, criminal law seeks to prohibit the taking of the car in the first place.

56. It is sometimes objected that conceiving of punishment as a threat system makes deterrence the main justification for punishment but that this way of conceiving punishment allows only for the justification of the appearance of punishment, not punishment itself. Any utilitarian or consequentialist theory that posits deterrence or crime control as its main goal would seem to justify the pretense of punishment, rather than actual punishment, if that is enough to achieve the justifying aim. But this means that criminals could get off with a pretend punishment, not a real one.

For example, Igor Primoratz objects that such a theory would justify not punishing the guilty “when the desirable effects of punishment can be secured without actually punishing—by producing an illusion of punishment.” He says, further:

Punishment works as a means of general prevention by its apparent aspect; real infliction of punishment is needed only to produce the apparent effect. Whenever the deterrent effects of punishment on the general public can be attained by having the offender punished only apparently, without actually inflicting punishment, this will be the best option from the utilitarian point of view. Really to inflict punishment in such cases would mean to be unreasonably and unjustifiably cruel.

Igor Primoratz, Justifying Legal Punishment (Atlantic Highlands, NJ: Humanities Press International, 1989) at 42.

There are various answers to this line of objection, which I list below. But the two points I would emphasize are these. First, if we could achieve crime control without ever punishing anyone and only going through some sort of ritualized pretend punishment, that would be fine. As noted in the body of this paper when considering schemes like that of B. F. Skinner, on the present theory, we should always look for better means for achieving crime control. See point (1) below. Second, so long as some criminals must be given real punishments to achieve crime control, then, to be consistent and fair to all concerned, all criminals must be given real punishments. This is because, on the analysis of penal desert developed in this paper, punishment is a distributive burden that must be shared by all who become liable for it under the distributive principles of Title and Amount.

(1) Note comments by Richard Wasserstrom:

There is a real sense in which Hart’s position is less a justification of punishment than a justification of the threat of punishment. It is clear that if we could convince the rest of society that we were in fact punishing offenders we would accomplish all that Hart sees us as achieving through punishment. This is so because it is the belief that punishment will follow the commission of an offense that deters potential offenders. The actual punishment of persons is necessary only to keep the threat of punishment credible. Punishment is, therefore, in Hart’s view, to be conceived as a necessary evil rather than a positive good. It follows, and this, too, is surely one of the merits of Hart’s view, that punishment is something that society ought always seek to minimize if not eradicate.

R. A. Wasserstrom, “H.L.A. Hart and the Doctrines of Mens Rea and Criminal Responsibility” (1967/68) 35 Univ. of Chi. L. Rev. 92 at 111.

(2) In an open society, the strategy of making people simply believe the criminal has been punished will not work because the secret that offenders are not really being punished cannot be kept; the word will get out. More importantly, perhaps, the criminal himself will know he has not been punished and will feel free to commit more crimes in the future.

In this connection, Thomas Schelling says:

As a rule, one must threaten that he will act, not that he may act, if the threat fails. To say that one may act is to say that one may not, and to say this is to confess that one has kept the power of decision—that one is not committed, [meaning the punishment is not fully contingent upon the action of the one threatened] To say only that one may carry out the threat, not that one certainly will, is to invite the opponent to guess whether one will prefer to punish … or pass up the occasion. Furthermore, if one says that he may—not that he will—and the opponent fails to heed the threat, and the threatener chooses not to carry it out, he only confirms his opponent’s belief that when he has a clear choice to act or to abstain he will choose to abstain (consoling himself that he was not caught bluffing because he never said that he would act for sure).

Thomas C. Schelling, The Strategy of Conflict (Cambridge, MA: Harvard University Press, 1963) at 187.

(3) From a social-contract perspective, there is also an implicit promise to criminal, victim and to society generally that offenders will be punished, as Ross notes. See supra footnote 20.

57. H.L.A. Hart cites a sleepwalking case in his Punishment and Responsibility, supra note 6 at 183–84.

58. Jeremy Bentham, The Principles of Moral and Legislation supra note 4 [Ch. XJH, “Cases Unmeet for Punishment,” Sec. 3 “Cases in which punishment must be inefficacious”] at 172–75.

59. Punishment and Responsibility, supra note 6 at 19.

60. Hart makes this point, saying:

It may very well be that, if the law contained no explicit exemptions from responsibility on the score of ignorance, accident, mistake, or insanity, many people who now take a chance in the hope that they will bring themselves, if discovered, within these exempting provisions would in fact be deterred. It is indeed a perfectly familiar fact that pleas of loss of consciousness or other abnormal mental states, or of the existence of some other excusing condition, are frequently and sometimes successfully advanced where there is no real basis for them, since the difficulties of disproof are often considerable.

Ibid, at 43.

61. Ibid, at 44.

62. Ibid, at 38. Hart also says:

Doubts about the justice of the punishment would begin only if he were punished even though he was at the time of the action in one of the excusing conditions; for what is essential is that the offender, if he is to be, fairly punished, must have acted ‘voluntarily’….

Ibid, at 37.

63. Ibid, at 152. See especially the discussion at 181–83.

Sleepwalking, epileptic seizure, and insanity, for instance, involve lack of capacity, physical or mental, to conform one’s behavior to what the law requires. Mistake and accident involve a lack of opportunity to conform. Duress may be seen as a lack affair opportunity to conform.

64. Ibid, at 22–23.

65. Ibid, at 48: “On the present view, which I advocate, excusing conditions are accepted as independent of the efficacy of the system of threats.” See also at 81.

Hart goes on to elaborate the advantages to the individual of having a system of punishment with excusing conditions. He emphasizes that having excusing conditions facilitates the individual’s ability to make choices by being able to plan and predict how and when the criminal law will affect him. We maximize the individual’s power to predict the likelihood of being punished, something that would be impossible to do if he were liable not only for, say, intentional assaults, but also for bumping into someone by accident, mistake, under duress, etc. We also make the individual’s choice one of the determining factors as to whether or not he is punished; the individual can choose to break the law and risk punishment or not. (Ibid, at 47–48) Thus, a system of punishment with excusing conditions respects the autonomy of individuals. It does this by “maximizing the effect of their choices within the framework of coercive law.” {Ibid, at 48 and see 206–09) “In this way the criminal law respects the claims of the individual as such, or at least as a choosing being, and distributes its coercive sanctions in a way that reflects this respect for the individual.” (Ibid, at 49, and see 22–23).

As I interpret Hart, respecting individual autonomy is part of treating persons with justice. Hart says:

…, and Justice simply consists of principles to be observed in adjusting the competing claims of human beings which (i) treat all alike as persons by attaching special significance to human voluntary action and (ii) forbid the use of one human being for the benefit of others except in return for his voluntary actions against them.

Ibid. at 22.

***

In effect the law says that even if things go wrong, as they do when mistakes are made or accidents occur, a man whose choices are right and who has done his best to keep the law will not suffer.

Ibid. at 182.

66. Vicarious, collective-responsibility arrangements in Anglo-Saxon criminal law were justified on utilitarian grounds. See, generally, L. T. Hobhouse, Morals in Evolution (London: Chapman and Hall, 1951) at 81.

Brian Barry offers a brief discussion of vicarious-liability arrangements for criminal law in his book Political Argument (London: Routledge & Kegan Paul, 1965) at 110–11.

Collective punishment is also noted by Patrick Devlin in his Enforcement of Morals (Oxford: Oxford University Press, 1965) at 30.

67. In this regard, Hart says:

Certainly vicarious punishment of an offender’s family might [avert some evils], and legal systems have occasionally though exceptionally resorted to this. An example … is the Roman Lex Quisquis, providing for the punishment of the children of those guilty of majestas. In extreme cases many might still think it right to resort to these expedients but we should do so with the sense of sacrificing an important principle. We should be conscious of choosing the lesser of two evils, and this would be inexplicable if the principle sacrificed to utility were itself only a requirement of utility.

Punishment and Responsibility, supra note 6 at 12.

68. All must be punished (i) to make the threat system as credible and effective as possible, and (ii) because arbitrarily letting some off works an unfairness on those who do receive their punishments.

69. Alan H. Goldman, “The Paradox of Punishment” (1979) 9 Phil. & Publ. Affairs 42.

Goldman actually cites both Rawls “Two Concepts of Rules” and Hart’s “Prolegomenon to the Principles of Punishment.” But these represent two different approaches.

Rawls makes a distinction between justifying the institution or practice of punishment and justifying an act falling under it. He believes the utilitarian and retributivist principles come in at different levels. The justification for a particular punishment, what the judge orders, is covered by the retributivist principles. The justification of the institution of punishment, the concern of the legislator, is covered by the utilitarian view.

Hart’s distinction between questions of general justifying aim and issues of distribution is not the same distinction as that of Rawls. Hart begins with utility as the general justifying aim and then supplements this with the retributive principles of distribution. But both of these elements are needed to completely justify the institution of punishment. To the question “Why any penal system at all?”, the theory points to the beneficial consequences to society. To the question “Why this particular kind of institution, punishment—rather than, say, telishment?” the theory points to the qualifying conditions of the retributivist principles.

70. Ibid, at 43–45.

71. Ibid, at 46.

72. Ibid, at 47.

73. Ibid, at 47–49.

74. I ignore here any problems the rights-forfeiture theory itself might have in explaining why the offender must pay back the equivalent of the rights he violated twice over, once to the victim in compensation and once to the state in punishment.

75. Michael Davis sets out the theory and develops a number of applications in his book To Make the Punishment Fit the Crime, supra note 9.

76. Davis distinguishes: (i) justifying the criminal laws as an institution, (ii) justifying individual statutory penalties, and (iii) justifying individual sentences. As I understand these distinctions, (i) and (ii) correspond to Hart’s distinction, while (iii) would include issues of excuse, mitigation, and possibly mercy, pardon, etc. Davis sets out his distinctions in ch. 2, “The Relative Independence of Punishment Theory” in ibid, at 18–41. Davis’s article originally appeared in: 7(1988)L. & Phil. 321.

77. I have laid out possible interpretations of “unfair advantage” in the course of my criticisms of Davis’s unfair-advantage theory; see Don E. Scheid, “Davis and the Unfair-Advantage Theory of Punishment: A Critique” (1990) 18 Phil. Topics 143 at 155–58.

78. It might be objected that virtually any punishment might have some deterrent effect. Timid and risk-aversive people may be deterred by very light punishments. Others might be deterred by die notoriety of a conviction, because of embarrassment or worry of a sullied reputation in their community (although I would not consider the mere publication of a criminal conviction punishment).

Nevertheless, Goldman’s point, I take it, is that a system of punishment operating under the kind of constraints he outlines cannot be expected to provide deterrence effective enough to justify the costs of running a criminal justice system.

A fuller account would have to balance die overall social benefits of deterrence against what Douglas Husak has called the “drawbacks of punishment.” These include, not only the obvious financial expenses of operating a criminal-justice system, but also what I would call the “moral costs”: die errors in findings of guilt and sentencing that will occur, and the corruption and abuses of die system that will take place from time to time. See Douglas N. Husak, “Why Punish the Deserving?” (1992) 26 Nous 447 at 450–52.

79. I have made this argument against unfair-advantage theory; see Don E. Scheid, “Davis and the Unfair Advantage Theory of Punishment: A Critique”, supra note 77 at 163.

For this and other criticisms of unfair-advantage theory, see also Don E. Scheid, “Davis, Unfair-Advantage Theory, and Criminal Desert” (1995) 14 L. & Phil. 375.

80. This point was suggested to me independently by Nelson Potter and Michael Davis.

In Section X below, I take up the question of exactly how much deterrence should be achieved, recognizing that no matter how Draconian the punishments are, some crime will always be committed.

81. In his analysis of desert, Rachels points out that desert objects may be general or specific. That is, a person may deserve to be treated in a generally good or bad way, or she may deserve some specific kind of good or bad treatment. Rachels illustrates the distinction with the following example:

Suppose a woman has always been kind and generous with others she deserves that others be kind and generous in return. Here we need not specify any particular act of kindness to say what she deserves, although of course treating her kindly will involve some particular act or other. What she deserves is that people treat her decently in whatever situation might arise. By way of contrast, think of someone who has worked hard to earn promotion in his job. He may deserve, specifically, to be promoted.

James Rachels, “What People Deserve” in John Arthur & William H. Shaw, eds., supra note 51 at 140.

82. Joel Feinberg, Doing and Deserving, supra note 35 at 64–65.

83. Feinberg says, “The desert basis is always preeminent possession of the skill singled out as a basis for competition.” According to Feinberg’s analysis, in a high-jumping contest, the best jumper (the person with the greatest jumping ability) is the person who deserves to win, but because of bad luck he is not in every case the one who actually does win. Thus, the expression, “May the best man win” is not a pious, empty remark. See Joel Feinberg, ibid, at 64.

It is sometimes suggested that one does not deserve to win just because of his or her natural ability, that desert must be based at least in part on effort. But this is only partly correct, I believe. In most situations, effort plays some role, to be sure; but it need not always be decisive in the determination of desert.

Suppose that A has more natural ability at high jumping than B but that B spends much more time and effort in training than A. In these circumstances we might be inclined to say that B deserves to win for trying so hard. But now consider a second case. Suppose both A and B expend equal amounts of time and effort training for the high jump; both put out 100% effort and put in the same amount of time training. Then in these circumstances, A would deserve to win.

84. Lottery is perhaps the paradigm of a non-desert system of distribution. By definition, persons who receives goods on the basis of the lottery do so because of luck and not because they are especially deserving. Luck is not desert. Though one might deserve some good luck, luck itself is the antithesis of a desert base. Of course, if one holds the winning ticket, then she is entitled to the lottery winnings; but this has nothing to do with desert.

85. I borrow the phrase “fabric of justice” from Richard L. Fern, ‘The Internal Logic of Justice” (1993) Soc. of Christian Ethics 23.

86. The two theoretical alternatives just outlined track George Fletcher’s account of the “traditional approach” and the “modern approach” in criminal law. The traditional approach emphasizes the victim’s suffering and the criminal’s responsibility for bringing about irreversible harm. The greater the injury, the greater the crime; so the severity of punishment is linked to the harm the victim has suffered. The lex talionis is the classical expression of this. The modern approach takes the act—what the actor has control over—as the core of the crime. Whether a bullet fired at a person kills or merely wounds is largely fortuitous, and the criminal law should be limited to those factors that are within the actor’s control. The occurrence of the actual harm is beyond his control, so it should not have any weight in the definition of the crime and the fitting of punishment. As Fletcher says, “The tension between these conflicting schools infects virtually all of our decisions in designing a system of crime and punishment.” See George P. Fletcher, A Crime of Self-Defense, (New York: The Free Press, 1988) at 64 and especially in chapter “The Significance of Suffering” at 64–67.

87. Hart, Punishment and Responsibility, supra note 6 at 162.

Hugo Bedau presses the issue, saying:

Even if we can agree that a malicious killer is morally and legally more culpable than an accidental killer, how are we to answer the question, “How much more culpable is he—twice as culpable? ten times?

***

…we need a way of combining the two concepts—culpability and harmfulness—into one common concept of gravity of offense. Without a common measure for these concepts, there is no way of telling, e.g., whether an offense that falls on the mid-point of the culpability scale and the bottom of the harmfulness scale is exactly as grave or half as grave, or twice as grave, as an offense that falls on the mid-point of the harmfulness scale but at the bottom of the culpability scale. Culpability and harmfulness seem to be not even as like each other as the proverbial apples and oranges;….

Hugo Adam Bedau, “Concessions to Retribution in Punishment” in Cederblom & Blizek, eds., supra note 6 at 64.

88. See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), supra note 21 at 60.

89. Fletcher also takes this position. See his Rethinking Criminal Law, where he says:

If the actor is fully accountable, he ought to be fully punished. Yet if his culpability is partial, he ought to be punished less. Lesser culpability justifies a mitigated punishment. This is the common experience of our legal system, as expressed in the doctrines of provocation, diminished capacity, and even earlier in the reduced penalty provided in cases of homicide se defendendo and per infortunium. The analytic model underlying this scheme is that accountability for an offense, say homicide, is complete when the actor acts voluntarily and intentionally causes death.

Thus the maximum level of punishment is set by the degree of wrongdoing [harm]; punishment is mitigated according as the actor’s culpability is reduced, (emphasis added) George Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978) at 461–62.

90. Ibid, at 463.

The issue is not merely academic with regard to the recent spate of so-called “hate crimes” that have been proposed and legislated, according to which punishments are enhanced when certain crimes are committed with the requisite hateful or bigoted motive against specified categories of people.

91. See, for example, Andrew von Hirsch and Nils Jareborg, “Gauging Criminal Harm: A Living-Standard Analysis” (1991) 11 Oxford J. of Legal Stud. 1 at 30.

92. Paul Robinson, “A Sentencing System for the 21st Century?” (1987) 66 Texas L. Rev. 1 at 45.

93. Douglas N. Husak, “Is Drunk Driving a Serious Offense?” (1994) 23 Phil. & Publ. Affairs 52 at 66 (note).

94. The point that “harm” must be stretched beyond recognition is well made by Michael Davis in his book To Make the Punishment Fit the Crime (Boulder, CO: Westview Press, 1992) at ch. 3, “Harm and Retribution”.

Douglas Husak also makes the point in his book Philosophy of Criminal Law supra note 53 at 234.

95. Andrew von Hirsch and Nils Jareborg address this difficult issue with regard to harm in their article “Gauging Criminal Harm: A Living-Standard Analysis”, supra note 91.

96. The basic contemporary work that addresses this issue is Joel Feinberg, vol. 1, Harm to Others (New York and Oxford: Oxford University Press, 1984); vol. 2, Offense to Others (New York and Oxford: Oxford University Press, 1985); vol.3, Harm to Self (New York and Oxford: Oxford University Press, 1986); vol. 4, Harmless Wrongdoing (New York and Oxford: Oxford University Press, 1988).

97. Hart recognizes this when he says: “Even if we had more than the limited insight which is available to human judges into a criminal’s motives, powers and temptations, there is no natural relationship to be discerned between wickedness and punishment of a certain degree or kind, so that we can say the latter naturally ‘fits’ the former.” Punishment and Responsibility, supra note 6 at 161.

98. One way to look at punishment as a “crime-control burden” is as follows. To control crime, a society needs a system of punishment. To operate a system of punishment, some people must receive punishments. Of all the citizens who might be called for “punishment duty,” say all adults, it is most just to punish those who have committed crimes, since, by the terms of the threat system, each citizen is put on notice that he might be called for punishment if he commits a crime (and is caught and convicted).

There is another reason it is just to call the criminals to punishment duty. It is die criminals who have caused the costs of crime to society in the first place, thus it is only fair that they be made to pay the main costs of maintaining a viable crime-control system (system of punishment) with the personal sacrifice of their liberty. This way of looking at things is suggested by Gregory Kavka:

The public suffers additional increments of fear and inhibition, and all the indirect negative effects of these, as the result of a crime. But if someone is duly convicted and punished for committing a crime, this presumably increases deterrence and the public’s security against such offenses in the future, which can outweigh (or at least partly offset) the public’s losses. Hence, criminal punishment serves to redistribute some of the cost of crime from the public back to criminals—promoting thereby social utility via deterrence, and justice by making the guilty bear (more of) the costs of their criminal behavior.

Gregory S. Kavka, “The Costs of Crimes: Coleman Amended” (1994) 104 Ethics 582 at 588.

Kavka also points out that it will not do to punish just anyone. For general deterrence to work, there must be good reason to believe that the person punished is the person who committed the crime. If people were punished randomly, whether or not they committed a crime, this would provide no incentive to avoid criminal conduct.

99. In his discussion of the concept of desert, John Kleinig, distinguishes between “raw” and “institutionalized” desert claims. As I understand him, these terms mark out the same distinction as my distinction between independent and institutional desert claims. One of Kleinig’s examples of an “institutionalized” desert claim is: “Nolan deserved the prize for his efforts. His painting was by far the best.” Clearly, such a claim makes no sense without the context of some sort of art competition. Kleinig’s example of a “raw” desert claim is: “Smith deserves a break-through. He’s been working at that problem for years now.”

See John Kleinig, “The Concept of Desert”, supra note 35 at 71.

100. Although independent desert principles of the sort favored by most retributivists probably cannot be conclusively invalidated, there are grounds for suspicion. First, it is curious, I believe, that specific desert claims in virtually all contexts other than punishment require some institutional setting (except, perhaps, reciprocity of gifts?). Why should specific desert claims about punishments be different?

Second, as we have already seen, a specific principle about what individuals deserve cannot be derived from the general concept of desert itself. The lex talionis is a substantive retributive principle; but no such substantive principle can be teased out of a conceptual analysis of the general concept of desert. I believe the four desert conditions outlined in Section IV are about the most we can get from the conceptual analysis. A retributivist must add a substantive principle to the pure concept of desert in order to establish his substantive principle of punitive desert, whether the lex talionis or some other. The vague, but substantive, principle that bad people deserve bad things and good people deserve good things, for instance, might help to establish the lex talionis. But certainly this would not be sufficient, because it leaves open entirely the question of magnitude which the lex talionis stipulates, that is, what quantity of bad things people are supposed to deserve for their bad deeds.

101. We may wish to place upper limits on any possible scale of punishments, regardless of deterrence. For instance, we might say, on entirely independent grounds, that the harshest punishments must still be humane and that no torture may be allowed. Some suggest a limitation against any physical mutilation; others argue against capital punishment.

Nothing I have said about the general justifying aim of crime control or the limiting principles of Title and Amount in the theory I am outlining would require any of these limitations. But I add an independent principle of humane treatment later in Section X.

102. The principles of justice as desert determine the internal structure of possible crime/punishment scales. This, in turn, will have some influence on the question of magnitude, since crime/punishment scales that did not respect desert constraints might, conceivably, achieve a given level of deterrence with a lower (or higher) overall magnitude. For more on this, see Section X, following.

103. John Kleinig relies on this “ratio-proportional” type of judgment: “We compare shoplifting and loitering with rape and murder and argue that the difference in seriousness between the former two is not as great as the difference in seriousness between them and the later two.” Kleinig calls these “judgments of proximity.” See John Kleinig, Punishment and Desert, supra note 35 at 116–17.

104. Ibid, at 118–19.

105. This is essentially Kleinig’s solution, ibid, at 123–24.

This approach is also adopted by Michael Davis, “How to Make the Punishment Fit the Crime”, supra note 31 at 741.1 have criticized some of the details of Davis’s application of the approach; see Don E. Scheid, “Davis, Unfair-Advantage Theory, and Criminal Desert”, supra note 79.

106. The construction of the crimes/punishments schedule may be a little more complicated than has been indicated, although the complication I have in mind does not affect the basic principles involved.

Michael Davis has suggested that crimes be grouped into types (property crimes, physical violence, homicides, etc.), that we then rank the crimes within each type, and finally combine the crimes on a single scale. The point of doing this is to be sure that punishments will be assigned in a way that will induce the would-be criminal to choose the least serious crime among those that would serve his purposes.

After the crimes have been duly ranked among their own types, the sets of typed crimes must be strung together. Here, Davis allows for some overlap and flexibility; and so would I. For example, although retaining a person by kidnapping or unlawful restraint would normally constitute a type of crime less serious than murder, Davis recognizes that aggravated kidnapping might amount to some degree of homicide (e.g., where the victim dies because of bad treatment at the hands of the kidnappers even though they did not intend it). So the seriousness of crimes of a kidnap set might well overlap some crimes in a homicide set. While this complicates the construction of the scale of crimes, it reflects a more realistic scale than a purely linear scale that has no overlaps. See Michael Davis, “How to Make the Punishment Fit the Crime”, ibid at 740.

107. A separate but related point concerns the modes of punishments that may be employed. It may be that among a group of different modes of punishments of equal severity (e.g., imprisonment, forced labor, whippings, fines, long-term house arrest, etc.) some have greater crime-control effect than others—whether for cultural/psychological or other reasons. If so, there is nothing in the present theory to prevent us employing the most effective mode of punishment—so long as it embodies the appropriate level of severity.

108. Martin Golding makes the complaint as follows:

In pursuit of the goal of crime reduction, he is committed to not causing more suffering than he eliminates. But now, I think, he is caught in a bind. He cannot cause more aggregate suffering to offenders than the aggregate he reduces for potential victims. His limiting principle involves the absurdity that the suffering of assaulters should be given a consideration equal to that of their potential victims!

Martin P. Golding, “Criminal Sentencing: Some Philosophical Considerations” in Justice and Punishment, supra note 6 at 98–99.

109. William James, “The Moral Philosopher and the Moral Life” in Pragmatism and Other Essays (New York: Washington Square Press, 1963) at 217.

110. Andrew von Hirsch suggests this sort of strategy, which he calls a “decremental strategy,” in his book Censure and Sanctions, supra note 8 at 40–41, 45.

111. Andrew von Hirsch makes this point in his article “Proportionality in Philosophy of Punishment” in Michael Tonry, ed., Crime and Justice: A Review of Research (Chicago: University of Chicago Press, 1992) 55 at 84.

He also notes that the difficulty of making estimates of deterrence have been taken up in Blumstein, Cohen, Nagin, eds., Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates [National Research Council, Assembly of Behavioral and Social Sciences, Committee on Research on Law Enforcement and Criminal Justice, Panel on Research on Deterrent and Incapacitative Effects] (Washington, DC: National Academy Press, 1978).

112. See Punishment and Responsibility, supra note 6 at 54–89.

113. K. L. Avio suggests this sort of case, considering people with green hair as relatively undeterrable. See K. L. Avio, “Economic, Retributive and Contractarian Conceptions of Punishment” (1993) 12 L. & Phil. 249 at 261.

114. John Hospers suggests this sort of case by considering that deterrence is minimal for the general category of murder. See John Hospers, “Punishment, Protection, and Retaliation” in Cederblom & Blizek, eds., supra note 6 at 27.

115. A similar idea is employed in health insurance when a person who is a very safe risk pays a little more on her insurance in order to cover someone else who is a not such a good risk. Both parties are lumped together in the same category and the costs are “spread” over all those in that category. Here, the deterrence burden is spread over all who are eligible for punishments.

116. Indeed, the distinction is often made between “negative retributivism,” which holds that only the guilty should be punished and always to the extent deserved or less, and “positive retributivism,” which holds that all and only the guilty should be punished and always to the full extent of their deserts. It is often held that negative retributivism is acceptable and that no injustice is done by giving an offender less than he deserves. But I would deny this.

117. About letting offenders off light, Hyman Gross makes the point as follows:

The offence to justice in unjustifiably lenient sentences has mainly to do with the blessings of innocence conferred on those who are not entitled to enjoy them. Those who conform their conduct to the law and remain genuinely innocent rightly resent what in effect is the spurious innocence of those who commit crimes with impunity, whether total or measured. Getting away with one’s crime is an instance of justice not being done. Being allowed to get away with it, even if only to a limited extent, is a case of injustice, for quite inequitably it confers a benefit that is not deserved.

Hyman Gross, “Culpability and Desert” (1983) 19 Archiv Für Rechts- und Sozialphilosophie, reprinted in Joel Feinberg & Hyman Gross, eds., Philosophy of Law, 4th ed. (Belmont, CA: Wadsworth, 1991) 669–76.

118. This problem was drawn to my attention by Husak in private correspondence. But see also Douglas N. Husak, “Why Punish the Deserving?”, supra note 78 at 461–62.

For a related case and discussion, see Michael Davis, “Postscript: In Fairness to Condemnation”, supra note 45. Drawing on an example suggested by von Hirsch, Michael Davis asks us to consider Futilia, a society with a murder rate that remains quite low and virtually unchanged no matter what the penalty for murder. Murder is nonetheless as morally blameworthy in Futilia as in our society. How much punishment should murder in Futilia receive? Should murder be punished as severely in Futilia as in our society?

The answer to this extreme case, I believe, is the answer Davis in fact gives, namely, that murder should not be a punishable crime in Futilia at all. By hypothesis, murder in Futilia is not at all deferrable. No amount of punishment, however mild or severe, has any effect on the murder rate. Since the general justifying aim of punishment is deterrence or crime control, and since the murder rate in Futilia is not at all affected by a system of punishment, then the act should not come within the ambit of punishable crimes. Thus we see mat deterrability may be one condition for making an action a crime in the first place.

Regarding Futilia, Davis says:

Potential murderers seem to differ in some fundamental way from the rest of society. No matter how loudly or softly the law speaks, they will kill about the same number of people. No matter how low the penalty for murder, almost no one else in the society would join the “hard core.” Potential murderers form a category of criminal more or less deaf to the criminal law. Futilia does not need to criminalize murder any more than we need to criminalize eating feces.

Ibid, at 589–90.

Furthermore, we might also question whether it is even coherent to say a type of act (here, murder) that it is completely undeterrable and yet blameworthy. “Actions” that are not even slightly deferrable are not really blameworthy, I should think. If a person does not refrain from a certain act, no matter what evils we threaten and impose, then we normally conclude that he cannot help doing what he does and, thus, that he is not blameworthy. Certainly, the assumption of a threat system is that the people addressed by it are able to respond to the threat.

119. The argument is also made by Alan Wertheimer. See Alan Wertheimer, “Deterrence and Retribution” (1976) 86 Ethics 181 at 183–84.

120. Husak, “Why Punish the Deserving?” supra note 78.

121. Taking account of the variation of deterrability among individual criminals is not taken up in this theory. That is something for the theory of individual sentencing. However, the present model would allow sentences to stipulate a narrow range of punishment for a given category of crime so that deterrence of individuals, along with other kinds of considerations, could play a role in deciding the sentence within that range.

122. Paul H. Robinson, “Moral Credibility and Crime” (March 1995) The Atlantic Monthly 72 at 76. Indeed, Robinson believes the utilitarian tinkering with the justice system over the last few decades has been a failure:

By setting sentences that would best rehabilitate offenders or would best deter other potential offenders or would best incapacitate dangerous offenders, each of our past programs distributed punishment in a way that could be seriously disproportionate to an offender’s blameworthiness. The cumulative effect of these policies has been to divert the criminal-justice system from doing justice, and public perception of that shift has undercut the system’s moral authority.

Ibid, at 78.

123. C.W.K. Mundle, “Punishment and Desert” (1954) 4 Phil. Quart. 216 at 222.