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February 1, 2011

"Total Retribution"

The title of this post, in addition to sounding like the title of a screenplay for former California Governor Arnold Schwarzenegger's return to action blockbuster movies, is the title of this great-looking new piece from Professor Meghan Ryan that is now available via SSRN.  Here is the abstract:

An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses.  While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender’s conduct should be considered in determining that offender’s desert.  The more remote harms caused by offenders’ conduct, such as the effect of their offenses on the families and friends of their victims or the effects of criminal conduct on communities in general, are pervasive in communities across the nation.

This Article takes a first look at this neglected issue of the role that more remote harms should play in sentencing and asserts that accounting for these more remote harms would better reflect the basic tenets of retributivism.  The Article acknowledges some of the challenges of embracing the totality of the theory of retribution and concludes that a legal limitation akin to the theory of proximate causation is necessary to reign in criminal liability under the theory.

February 1, 2011 at 01:38 PM | Permalink


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Sure, but if you want to look at the "big picture," then you also need to look at the broader societal conditions (lack of educational opportunities, extreme income inequality, lack of health care, racism, etc.) that led to the defendants' positions of desperation that led to the crimes in the first place. Let's look at crime rates regressed on income, education, race and locale (inner city versus suburban). I think you'll find that the R-squareds are through the roof. Talk about proximate causation...

Who really deserves retribution?

Posted by: James | Feb 1, 2011 3:08:28 PM

Say, the second body is found from the work of a serial killer in the same area. What happens to the value of real estate in that neighborhood?

Say, the economic value of a life is $6 million.

The serial killer and those who have allowed him to be on the street instead of dead at age 14 or whatever age is acceptable to the public have far exceeded the value of their lives in costs to real estate. The protection of the killer by the Supreme Court is really a taking so that lawyers can generate jobs from the work of criminals.

Posted by: Supremacy Claus | Feb 1, 2011 5:45:48 PM

Isn't this was relevant conduct was all about?

Posted by: mark allenbaugh | Feb 7, 2011 10:52:23 AM

Thank you, James. That was my first thought. It seems unfair to insist on an extremely broad measure of causation vis a vis harm, while simultaneously refusing to allow a broad measure of causation vis a vis culpability.

Posted by: Anon | Feb 8, 2011 5:21:35 PM

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