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August 9, 2022

"Is the Principle of Desert Unprincipled in Practice?"

The title of this post is the title of this notable new article authored by Marah Stith McLeod now available via SSRN.  Here is its abstract:

Scholars have long debated whether criminal penalties should be based on what defendants deserve (as retributivists argue) or on the practical benefits that sanctions may achieve (as utilitarians believe).  In practice, most states take a pluralistic approach: they treat both desert and utility as important to punishment, with desert operating, at least on paper, as a limiting principle.

Can desert, however, actually limit punishment?  Critics answer no.  They claim that desert is an indefinite and malleable notion, easily invoked to mask discrimination and rationalize draconian sanctions.  Laws in America often emphasize desert, they observe, while feeding mass incarceration.

But the principle of desert is not to blame.  A focus on punishing defendants no more than they deserve can constrain punitive impulses, as it has in the context of capital punishment.  The real problem lies with our current procedures for judging desert, which sap its power as a limiting principle.  These procedures allow sentencing authorities to consider desert and utility at the same time, which blurs two incommensurate concerns and prevents either from serving as a meaningful limit.  Furthermore, they often allow judges to define desert without reference to legitimating community norms.

Desert can limit punishment if it is addressed in a more principled way. Sentencing should begin with desert, before any consideration of utility, so that the moral boundaries of punishment are clearly established.  Lay juries, not judges, should assess desert, and should have the power to limit punishment based on it, even below statutory minimums.  If states allowed defendants to waive this jury sentencing procedure, many might do so in exchange for more favorable plea deals.  But the pleading process would become more fair, for prosecutors could no longer threaten statutory penalties no reasonable jury would deem deserved.

August 9, 2022 at 10:29 PM | Permalink


I didn't see anything clear to address concerns about serious inconsistency between juries. Isn't that part of why the military is moving away from having the panel members sentence and having the military judge sentence instead?

Posted by: Jason | Aug 10, 2022 7:04:54 PM

Jason -- your concern about inconsistency among jury decisions is worth addressing, and I hope you'll allow me to respond (The paper itself addresses inconsistency among juries at pp. 64-66 but I don't expect you to read that far!). First, consistency may be outright harmful if it means repeating unjust decisions. Taking a fresh look may lead to inconsistent decisions, but that price is arguably worth paying to ensure we -- as a people-- question and rethink the amounts of punishment we're used to accepting. Second, the proposal is for juries to decide how much punishment is deserved, but not necessarily the final sentence. Therefore, if the amount of deserved punishment is a range (as it could be) or the jury's decision is treated as a maximum, but not a minimum, then utilitarian considerations can be addressed by judges in a more consistent way (and sentencing laws in all states say utilitarian concerns should be taken into account in sentencing as well). Sentencing guidelines can be used to help promote consistency in the empirical assessment of utility, but should not be used for desert determinations by the jury, as that would defeat the purpose of the jury to ensure an individualized application of community moral norms. Third, and finally, judges can be and are sometimes inconsistent, too, and judicial inconsistency is arguably less tolerable (and more likely to seem illegitimate) than natural variations in the decisions of laypeople.

Posted by: Marah Stith McLeod | Aug 12, 2022 4:22:34 PM

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