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February 9, 2014

"Can Deserts Be Just in an Unjust World?"

The title of this post is the title of this interesting new essay now available via SSRN authored by the always interesting Michael Tonry.  Here is the abstract:

The problems of “just deserts in an unjust world” received little attention before the widespread revival of support in the 1970s for retributivist theories of punishments.  The problems are two: whether deep social disadvantage should be recognized as an excusing or mitigating defence in the criminal law, and whether it should be recognized as an appropriate basis for mitigating the severity of punishment.  Most legal analysts oppose recognition of social disadvantage defences.  Most retributivist philosophers recognize the difficulty of the problem but waffle about appropriate responses.  The few who write about it oppose mitigation of sentences.

Those views fail to acknowledge the existence of social science evidence on human development that makes clear that many offenders offend for reasons for which no plausible case can be made that they are morally responsible.  Formal excusing and mitigating defences, and the appropriateness of deep disadvantage as a justification for mitigation of punishment, should be recognised.

February 9, 2014 at 08:45 PM | Permalink

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Comments

I believe the term is "just desserts" (two S's). I'm surprised it got past the peer review editing process.

In any case, my standard answer to the criminal justice system applies here as well: without the ability to assess both punitive measures and rehabilitative measures separately, the end result will most often be an unsatisfactory compromise. As such, victims need the assurance that the punitive aspect involving incarceration and financial retribution of the punishment is fair, while the community and the offender needs to know that the rehabilitative aspect will be fair. Each segment can be adjudicated separately, as opposed adjudicated as a compromise to a finite sentencing paradigm.

Posted by: Eric Knight | Feb 9, 2014 10:41:15 PM

I wondered if "desert" was supposed to be some clever wordplay or something rather than a pretty egregious spelling error.

Posted by: Erik M | Feb 10, 2014 8:51:18 AM

Sorry, but I believe the author is correct. It's "deserts" as in what you "deserve", not your tiramisu after dinner.

Posted by: ungrateful.biped | Feb 10, 2014 9:43:26 AM

|| Those views fail to acknowledge the existence of social science evidence on human development that makes clear that
many offenders offend for reasons for which no plausible case can be made that they are morally responsible. ||

Okay, then, to be just as fair (in the fictional world):

// Social Science evidence on human development makes clear that state authorities execute many aggravated murderers
for reasons for which no plausible case can be made that they are morally responsible. \\

Posted by: Adamakis | Feb 10, 2014 3:11:03 PM

The word is definitely "deserts", things which are deserved. Common in the 16th through early 19th centuries, today it survives only in the idiom "just deserts". Unless you're a specialty restaurant that only sells cakes and pies, "Just desserts" is wrong.

Posted by: Allen | Feb 11, 2014 2:14:34 PM

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