The A.L.I.’s Proposed Distributive Principle of ‘Limiting Retributivism’: Does It Mean In Practice Anything Other Than Pure Desert?

Source: (2003) University of Pennsylvania Law School. Scholarship at Penn Law. Paper 33. The Berkeley Electronic Press (bepress). Downloaded 14 October 2005.

Robinson supports the proposed “purposesâ€? text of the New American Law
Institute Report on Sentencing Reform but argues that in practice it will not
mean what traditional utilitarians, like those supporting “limiting retributivism,â€?
are expecting. First, the proposed text allows reliance upon non-desert distributive
principles only to the extent that they serve their stated goals. As the ALI
Report concedes, there are limits to the effectiveness one can expect from rehabilitation
and, as is now becoming apparent from social science research, our
realistic expectations for the effectiveness of deterrence are similarly fading. It
is true that incapacitation undoubtedly works to prevent future crime and there
is increasing evidence that “restorativeâ€? processes can be effective in achieving
their goal, but following these distributive principles can have crime prevention
costs (which the text’s proposed distributive principle would not seem to allow
to be taken into account). For example, most importantly, reliance upon these
principles can undercut the criminal law’s moral credibility and, thereby, its
power to gain compliance by harnessing social norms.
Second, the greatest constraint on the influence of the enumerated non-desert
purposes is the proposed principle’s demand that no distribution can conflict
with the demands of desert. Contrary to the assumption of the original advocates
of “limiting retributivismâ€? that desert provides only vague outer limits
on punishment, desert has quite specific demands, driven in large part by
the demand of ordinal ranking: that a case of greater blameworthiness receive
greater punishment than a case of comparatively less blameworthiness. Given
the limited range of punishments a liberal democracy ought to be willing to
inflict, distinguishing cases of distinguishable blameworthiness means that the
deserved punishment will fall within a narrow range on the punishment continuum
(a result consistent with what social scientists are lately learning about
the rather sophisticated intuitions of justice shared by laypersons).
In closing, Robinson offers brief remarks addressed to those who oppose a desert
distribution, of which he suggests there are two sorts: those who have an erroneous
of what “desertâ€? means, and those who think avoiding crime is more
important than doing justice. To the first group, he simply sketches the current
consensus view of constitutes the modern conception of desert. To the second
group, he argues that a desert distribution may well be the most effective in
avoiding future crime, once one takes into account the crimogenic effect of non-desert
distributions, when the community comes to understand that the criminal
justice system is not in fact in the business of doing justice. In any case, he
argues that in the absence of sufficient data to reliably answer the empirical
question as to which distribution would best reduce crime, we ought to do at
least what we know we can do: do justice. Author’s abstract.