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October 17, 2010

"A Distributive Theory of Criminal Law"

The title of this post is the title of this interesting-looking new piece by Professor Aya Gruber, which is in the October 2010 of the William and Mary Law Review.  Here is the abstract:

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment -– retributivism and utilitarianism.  The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer.  At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance.  This Article asserts that there is in fact a distributive logic to the changes in current criminal law.  The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim.  Criminal laws are accordingly distributive when they mete out punishment for the purpose of ensuring victim welfare.

This Article demonstrates how distribution both explains the traditionally troubling criminal law doctrines of felony murder and the attempt-crime divide, and makes sense of current victim-centered reforms.  Understanding much of modern criminal law as distribution highlights an interesting political contradiction.  For the past few decades, one, if not the most, dominant political message has emphasized rigorous individualism and has held that the state is devoid of power to deprive a faultless person of goods (or “rights”) in order to ensure the welfare of another.  But many who condemn distribution through the civil law or tax system embrace punishment of faultless defendants to distribute satisfaction to crime victims.  Exposing criminal law as distributionist undermines these individuals’ claimed pre-political commitment against government distribution.

October 17, 2010 at 12:41 PM | Permalink


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Punishment has an intent and a result that is misundertood by the author. It is not the infliction of pain. Indeed, some people find pain rewarding. Punishment is any consequence that reduces the likelihood of the behavior in the future. So if a pretty prison guard is restraining me, and yelling, has me down and is straddling me, it is painful, but I love it. I will work hard to make the "punishment" happen again. If something increases the likelihood of a behavior, that is labeled a reward. The definition is circular.

The overwhelming majority of criminals have failed to respond to punishment, including to harsh corporal punishment from childhood onward. Often their MO can be seen in childhood misconduct. That is why, the count in 123D should begin as early as the public can stomach it.

A subgroup of criminals is non-responding to punishment due to impulsivity. Inflicting pain on this group is a waste of time, since their misconduct is without calculation with input from the odds of getting caught, and the severity of the punishment. Pain is likely to arouse them even more, and to increase the agitated misconduct, even if they find no pleasure in it.

So punishment and rewards have failed prior to sentencing. All that remains, the sole remaining mature aim of the criminal law, is incapacitation.

Posted by: Supremacy Claus | Oct 17, 2010 1:28:47 PM

OW Holmes has never been wrong. An attack on his support of the felony murder rule contains a simple math error. And felony murder laws are associated with lower felony murders.

Posted by: Supremacy Claus | Oct 17, 2010 1:32:55 PM

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