Many theories of punishment are prospective and consequentialist in their orientation and employ punishment to secure the greatest good for the greatest number of people. Deterrence, incapacitation, and rehabilitation are examples of utilitarian punishments. On the other hand, “just deserts” theory (sometimes called simply “desert” or “retributivism”) is retrospective and deontological (duty-based) in its orientation. Desert is linked to notions of proportionality (linking the severity and wrongfulness of the crime to appropriate punishment). It suggests that criminals should be punished not because it is socially useful to do so, but because they deserve it. Even if a punishment is socially harmful, filling prisons and consuming taxpayer dollars, desert might nevertheless require its imposition, as suggested by the Roman maxim, Fiat justitia ruat caelum (May justice be done though the heavens fall).
Fairness theory suggests that offenders have taken advantage of the social contract by breaking the law, and this unfair advantage is annulled by punishment. Retributivism assumes both negative (limiting punishment to wrongdoers) and positive (asserting an affirmative duty to punish) forms. The theory of limiting retributivism uses desert to set the outer limits of retributivism and then employs utilitarian theories to select a specific punishment within the desert-based range.
Just deserts theory is sometimes associated with the principle of lex talionis (a punishment that is identical to the crime, an eye for an eye), which can be traced to the Code of Hammurabi, the Old Testament, the Qur’an, and ancient Roman law. The theory of desert fell out of fashion in the mid-20th century but grew in popularity after the mid-1970s.
522 Just Deserts
The principle of just deserts, linking the severity of punishment to the harm and/or wrongfulness of the crime, is associated with proportionality in sentencing. The proportional rule of lex talionis, equating an eye for an eye, appears in both the ancient Code of Hammurabi (which states that if a man puts out the eye of an equal, his own eye must be put out) and the Old Testament of the Bible (for example, the book of Leviticus states that anyone who maims another person shall suffer the same injury in return: fracture for fracture, eye for eye, tooth for tooth).
It also appears in the Koran (which, again, asserts a rule of life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and injury for equivalent injury) and in ancient Roman law (though Roman laws usually substituted financial penalties for returned injuries). The principle was intended to limit spirals of vengeance and feuds, but this view as strictly applied was eventually rejected. In the New Testament book of Matthew (ca. late 1st century C.E.), moderation is advised: “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, do not resist an evildoer. If anyone strikes you on the right cheek, turn to him the other also.” In the mid-20th century Mahatma Gandhi is reputed to have said that an eye for an eye for an eye for an eye ends in making everybody blind.
Norval Morris’s influential theory of limiting retributivism uses desert as an anchoring principle, setting the upper (and perhaps lower) thresholds of punishment, and then uses utilitarianbased theories of punishment, such as deterrence, incapacitation, rehabilitation, and values of uniformity (equality) and parsimony (imposing the least punitive sentence that will achieve the goals of sentencing) to impose a specific sentence within that range.
Penal theorists like Herbert Morris and Jeffrie Murphy (who built upon the work of the philosopher Immanuel Kant) suggest that retribution redresses the unfair advantage of society that the criminal has taken. In one early formulation, philosopher G. W. F. Hegel explained that when the criminal violates the law, his crime is the negation of the right of society. Punishment is the negation of this negation, Hegel explains, and thus an affirmation of right, brought upon the criminal by himself.
Negative and Positive Retributivism
Negative retributivism requires that only the guilty may be punished, and then only to the extent they deserve, but it does not require that punishments must be imposed. Positive retributivism, on the other hand, requires that guilty must be punished to the full extent of their desert. The view of positive retributivism was articulated by Immanuel Kant, who argued that even if an island society was about to disband, the last murderers lying in its prisons should be put to death. Society has not only a right to punish them, Kant argued, but also a “duty” to do so.
During the early and middle years of the 20th century, retributivism fell out of favor as a theory of punishment. In the 1940s, 1950s, and 1960s, many scholars dismissed retributivism as barbaric and obsolete. Jurists rejected it as a legitimate basis of punishment, as well. In 1949, in the case Williams v. New York, the U.S. Supreme Court boldly declared that retribution was not the dominant objective of the criminal law. In 1974, however, Robert Martinson published an influential article that dismissed rehabilitation programs as ineffective. Quickly, public opinion shifted and rehabilitation was popularly rejected as a legitimate basis of punishment, while retribution (rebranded as “just deserts”) resumed a central place in public policy debates.
- Martinson, Robert. “What Works?—Questions and Answers About Prison Reform.” The Public Interest, v.35 (1974).
- Morris, Herbert. “Persons and Punishment.” The Monist, v.52 (1968).
- Morris, Norval. “Desert as a Limiting Principle.” In Principled Sentencing. Andrew von Hirsch and Andrew Ashworth, eds. Lebanon, NH: Northeastern University Press, 1992.
- Murphy, Jeffrie G. “Does Kant Have a Theory of Punishment?” Columbia Law Review, v.87 (1987).
- von Hirsch, Andrew. Doing Justice: The Choice of Punishments. New York: Hill & Wang, 1976.
- von Hirsch, Andrew, and Andrew Ashworth. Proportionate Sentencing: Exploring the Principles. New York: Oxford University Press, 2005.
- Wilson, James Q. Thinking About Crime. New York: Vintage, 1983.
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