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Criminal Desert, Harm and Fairness

Published online by Cambridge University Press:  16 February 2016

Michael Davis
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Extract

This paper has two parts. The first (sections I-III) compares retributive theories measuring criminal desert largely by the harm the criminal did or risked, with a theory measuring it by the unfair advantage the criminal necessarily took, what I shall call “the fairness theory”. This part of the paper summarizes arguments I have made elsewhere. The second part (sections IV-V) defends the fairness theory against five objections recently made against it by two important theorists, Andrew von Hirsch and Hyman Gross. The objections are variations on the charge that the fairness theory of criminal desert is implausible, incoherent, or otherwise fundamentally flawed. Each objection collapses almost as soon as one or another standard distinction is made. I conclude the paper wondering why theorists have not noticed how weak these objections are.

Type
Determining Penalties (1): Criteria for Sentencing
Information
Israel Law Review , Volume 25 , Issue 3-4 , Summer–Autumn 1991 , pp. 524 - 548
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1991

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References

1 The best of these early theorists, of course, was Morris, Herbert, “Punishment and Persons” (1968) 52 Monist 475–501CrossRefGoogle Scholar. Yet even he seems more in touch with philosophy and literature than with penal practice, criminological research, or comparative law. Only in the late 1970's did theoretical work appear that surpassed von Hirsch's combination of theoretical grasp and practical knowledge, for example, Fletcher, George, Rethinking the Criminal Law (Boston, Little, Brown, 1978)Google Scholar.

2 But note that one writer recently found Herbert Morris and me not to be retributivist because we understand the “purpose of punishment” to be to “remove an unearned or undeserved benefit rather than to impose a deserved disadvantage”. Philips, Michael, The Justification of Punishment and the Justification of Political Authority” (1986) 5 Law and Philosophy 393-416, esp. 407CrossRefGoogle Scholar. Philips has, I think, misunderstood my position (and may well have misunderstood Morris' in the same way). I do not hold that the purpose of the institution of punishment (that is, a system of criminal justice) is to take back undeserved benefits. (The purpose, if there is to be just one, seems to be preserving social order at a reasonable cost in liberty). Nor do I hold that the purpose of every enactment of a statutory penalty or every imposition of a particular sentence is, or should be, to take back undeserved benefits. What I do hold is that statutory penalties and particular sentences that exceed in severity what is necessary to take back the unfair advantage the crime necessarily took, are unjust. Though it might surprise Philips, I have no objection to describing a particular punishment as imposing a deserved disadvantage rather than as taking back an undeserved advantage (so long as the disadvantage is deserved because the criminal took unfair advantage). I therefore believe my credentials as a retributivist to be in order.

3 The titles of these papers are a good index of their content: “Strict Liability: Deserved Punishment for Faultless Conduct” (1987) 33 Wayne L. R. 1363–1393Google Scholar; “Harm and Retribution” (1986) 15 Philosophy and Public Affairs 236–266Google Scholar; “Why Attempts Deserve Less Punishment Than Complete Crimes” (1986) 5 Law and Philosophy 1–32CrossRefGoogle Scholar; “Just Deserts for Recidivists” (1985) 4 Criminal Justice Ethics 29–50CrossRefGoogle Scholar; “Guilty But Insane?” (1984) 10 Social Theory and Practice 1–23CrossRefGoogle Scholar; and “Death, Deterrence, and the Method of Common Sense” (1981) 7 Social Theory and Practice 145–178CrossRefGoogle Scholar.

4 “Setting Penalties: What Does Rape Deserve?” (1984) 3 Law and Philosophy 62–111Google Scholar; “Must Justice Be Even-Handed?” (1982) 1 Law and Philosophy 77–117CrossRefGoogle Scholar; and “How to Make the Punishment Fit the Crime” (1983) 93 Ethics 726–752CrossRefGoogle Scholar.

5 Most of these arguments are to be found in “Harm and Retribution”, supra n. 3.

6 Hirsch, Andrew von, Past or Future Crimes (New Brunswick, N.J., Rutgers U. P., 1985) 91Google Scholar.

7 Ibid.

8 See, for example, von Hirsch, Andrew, “Desert and Previous Convictions in Sentencing” (1981) 65 Minn. L. R. 591-634, esp. 619 n. 64Google Scholar: “If the offender has a very large number of convictions, there may be an understandable desire to begin to respond more severely. But that would have to rest, in my view, on utilitarian notions (e.g., the notion that harsher measures need to be tried when lesser ones have failed so often before …), rather than on the idea of the offender deserving more punishment …”

9 “Just Deserts for Recidivists”, supra n. 3.

10 “How to Make the Punishment Fit the Crime” supra n. 4, at 736-742.

11 Past or Future Crimes, supra n. 6, at 74-76. One example will suggest the flavour of this whole section: “At least so far as typical crimes of theft, force, and fraud are concerned, one can develop a rough assessment of their consequences using the legal definition of the crime and available common knowledge of its probable effects” (at 74).

12 von Hirsch, Andrew, Doing Justice: The Choice of Punishment (New York, Hill and Wang, 1976) 47–49Google Scholar.

13 Past or Future Crimes, supra n. 6, at 58-59.

14 See, especially, Murphy's, Jeffrie seminal paper, “Marxism and Retribution” (1973) 2 Philosophy and Public Affairs 217–43Google Scholar. I ignore here Murphy's psychological complaint that it is unfair to punish the poor for committing crimes in a society that makes clear to the poor how much they are missing. I do so for two reasons. First, most of the poor do not commit crimes; so, at least they can be those the crimes of the poor take unfair advantage of. Second, Murphy's argument seems to rest on a particularly mechanical view of the connection between temptation and action or desire and responsibility.

15 Sterba, James P., “Is There A Rationale For Punishment?” (1984) 29 Am. J. of Jurisprudence 29-43, esp. 43CrossRefGoogle Scholar. Those who (like Philips) do not understand why justification of punishment seems so divorced from political philosophy would do well to read Sterba carefully. His conditions for just punishment are so weak that almost any state is likely to satisfy them in most cases. Though political theory and punishment theory are not unrelated, their relation is, it seems, so weak that the theory of political justification is unlikely to tell us anything interesting about punishment. For the contrary argument, see Philips, “The Justification of Punishment and the Justification of Political Authority”, supra n. 2, esp. at 404-406.

16 Past or Future Crimes, supra n. 6, at 58.

17 Ibid.

18 “How to Make the Punishment Fit the Crime”, supra n. 4, at 737-739.

19 Past or Future Crimes, supra n. 6, at 59 (and again, at 36).

20 Ibid.

21 See, for example, Kadish, Sanford H., “Complicity, Cause and Blame: A Study in the Interpretation of Doctrine” (1985) 73 Calif. L. R. 323–410CrossRefGoogle Scholar. As the title suggests, the purpose of the article is to use the concept of blame to explain complicity doctrine. Kadish in fact devotes a whole section of the paper (329-336) to explicating the concept of blame. Yet, no where does he even ask why the principles of blaming should be the same as those of punishing. He merely begins with the undefended claim that blame is “a concept that reaches so deeply into the jurisprudence of the criminal law that no account of the law can succeed without explicating its meaning and its role” (at 329).

22 How then do I explain the difference between my analysis of shame and that given by Morris, Herbert in On Guilt and Innocence (Berkeley, U. of Calif. P., 1976) 59–63Google Scholar? Morris there distinguishes between blame and shame, arguing that blame and guilt are more alike than either is like shame. Perhaps because I am not concerned with shame as such, but with how we shame, I find shaming to be much more like blaming than either is like punishment. Perhaps too, Morris (in that paper), Gross, von Hirsch, Kadish, and others are working with a philosophical model of blaming (blaming as a kind of punishment) whereas I am simply drawing on etymology and ordinary non-philosophical usage. Certainly, something strange is going on. Morris expressly distinguishes between blaming and punishing in his more recent “A Paternalistic Theory of Punishment” (1981) 18 Am. Philosophical Q. 263–271Google Scholar, for example, “Because of this relationship, punishment is connected with the good that I have described in a way that blame and disapproval by themselves are not” (at 266). For another analysis of blaming close to mine, see Kneale, William, The Responsibility of Criminals (Oxford, Oxford U. P., 1967) 25–30Google Scholar.

23 Rossi, Peter H. et al. , “The Seriousness of Crimes: Normative Structure and Individual Differences” (1974) 39 Am. Sociological R. 224-37, esp. at 228–29CrossRefGoogle Scholar.

24 Past or Future Crimes, supra n. 6, at 65.

25 Hamilton, V. Lee and Rytina, Steve, “Social Consensus on Norms of Justice: Should the Punishment Fit the Crime?” (1980) 85 Am. J. of Sociology 1117–44CrossRefGoogle Scholar.

26 Feinberg, Joel, Doing and Deserving (Princeton U. P., 1970) 95–98Google Scholar.

27 Gross, Hyman, “Fringe Liability, Unfair Advantage, and the Price of Crime” (1987) 33 Wayne L. R. 1395–1411Google Scholar. Though he makes other arguments as well, they need not concern us.

28 Ibid., at 1403.

29 Ibid., at 1405.

30 Ibid., at 1410-1411.

31 Ibid., at 1404.

32 See, for example, Duff's, R. A. disappointing discussion of setting penal in his generally impressive Trials and Punishments (Cambridge U. P., 19 ) especially 279–281Google Scholar.

33 Theorists generally seem disappointed when someone else's theory of punishment shows signs of such compromise. Note, for example, Reiman, Jeffrey H., “Justice, Civilization, and the Death Penalty: Answering van den Haag” (1985) 14 Philosophy and Public Affairs 115–148Google Scholar. He there criticizes me for only taking account of cost to the victim “halfheartedly”, pp. 120-121, n. 10. Like other critics of the fairness theory, he also suggests problems and then doesn't wait for an answer.

34 I should like to thank Don Scheid and Paul Gomberg for helpful comments on the first draft of this paper.