Criminal law theory is characterized by a longstanding debate between two broad positions: retributivism, which posits criminal law is justified by the moral demand to punish culpable offenders in accord with moral desert, and mixed instrumental-moral theorism, which posits that criminal punishment requires both an instrumental purpose and a prerequisite of offender culpability. Without attempting to mediate this ongoing debate, this Article addresses the practical implications for criminal justice institutions and procedure of each of these two dominant, competing accounts of criminal law and punishment. I argue that the mixed theoretical account is so deeply embedded in Anglo-American criminal justice practice that a system oriented toward retributivism would require substantial institutional reform. Piecemeal imposition of some retributivist commitments would conflict with the existing institutional expectation of mixed theoretical commitments in a way that would risk thwarting the goal of having punishment accord with moral desert: a goal which both sides of the debate share.
There are indeed many forms of undesirable behavior which it would be foolish ... to attempt to inhibit by use of the law and some of these may be better left to educators, trades unions, churches, marriage guidance councils, or other non-legal agencies.
H.L.A. Hart (1)
English and American law leaves much undesirable behavior free of criminal punishment, but it does so, broadly speaking, in two distinct ways: Some undesirable behavior is free of criminal law because no statute defines it as criminal. Other undesirable behavior is criminalized but is unregulated due to discretionary decisions of enforcement officials not to prosecute, either occasionally or consistently. Thus, whether criminal law is an appropriate way to address undesirable conduct is a judgment sometimes made by legislatures and other times made by police, regulatory agencies, and prosecutors.
Legislatures effectively delegate a portion of this set of judgments to enforcement officials. The criminal codes they enact are expansive and designed to be under-enforced; (2) statutory offenses apply to much more conduct than anyone--including the legislators who drafted them--would want. (3) That makes charging discretion pervasive and inevitable, in accord with the common law tradition. (4) Enforcement officials commonly have choices between criminal prosecution and civil sanctions or other non-criminal remedies, and they always have a formal choice between charging and not charging even when criminal charges are provable. In making those decisions, prosecutors (and also, to various degrees, police and regulatory officials) weigh a set of familiar considerations: harm, blameworthiness, deterrent effects, alternative remedies or policy options, and resource constraints. (5) Enforcement discretion is guided by a mix of practical considerations and concerns that are at the core of the theory of criminal law and punishment.
Criminal law theory speaks to all three of the components that create this criminal justice practice--criminalization, enforcement, and punishment. Consequentialist rationales, at least as far back as Beccaria, Blackstone and Bentham, have offered primary organizing premises, and varying strategies, for all three projects. (6) Consequentialism assesses the morality and efficacy of actions by the results they bring about; for criminal punishment, the hoped-for result is typically crime reduction. (7) Utilitarianism, the most prominent version of a consequentialist theory, assesses acts and institutions on whether they produce a net benefit, and this is the typical consequentialist ground by which criminal punishment is assessed--whether gains in crime reduction are greater than the costs of punishment policy. (8) Punishment, on such an account, usually aims to deter, rehabilitate, or incapacitate, so its form should be designed to serve those goals. (This is an instrumental view of punishment, meaning punishment is designed to promote a particular goal.) In making enforcement decisions, a consequentialist official weighs costs and benefits of prosecution and punishment, such as consequences to third parties or the possibility that greater punishment might offset less-than-universal enforcement. (9)
Consequentialist values have long played a central and prominent role as justifications for Anglo-American criminal justice. (10) But few adherents justify punishment exclusively in those terms. In contrast, deontological or moral-based accounts have long informed our conceptualization of criminal law and punishment. A strictly deontological approach justifies punishment on grounds of the actor's fault and culpability (11) and assesses actions in light of moral duties and without respect to consequences; an action may be good and morally required even if it has bad effects. (12) A punishment regime built on deontological commitments reserves sanctions solely for culpable wrongdoers. (13) Only after concluding that an offender deserves sanction based on his culpable conduct might a punishment regime then adjust punishment with instrumental purposes in mind. In recent decades, scholarly debate on justifications for punishment have been dominated by those who share a deontological commitment to punishment based on desert but disagree on what additional role consequentialist values should play in punishment. (14) Put differently, debate tends to center on the relative weight that should be accorded to desert and to deterrence or incapacitation when making punishment decisions. (15)
Anglo-American criminal justice institutions draw on both instrumental and deontological commitments for their lawmaking, enforcement, and punishment policies. Yet the combination creates ongoing tension in both scholarly debate and enforcement practice. Does a commitment to punishing offenders in accord with moral desert take primacy over other, utilitarian concerns, or do those other goals, when they conflict, have equal or greater weight in decisions to prosecute and punish? The choice matters at the level of social values and poses a challenge for theorists. It also has immense implications for the practical design of criminal justice institutions, including criminal codes and enforcement infrastructure and policy, as well for practices within those institutions.
No substantial scholarly literature argues for an exclusively consequentialist regime of criminal punishment without regard to individual culpability. Put differently, there is little disagreement that desert is necessary to justify punishment. (16) The disagreement instead concerns the sufficiency of desert--whether desert alone is sufficient to justify punishment--and the strength of that sufficiency claim--whether desert's sufficiency creates something like a strong presumption to punish or, at the extreme, a State duty to punish. Broadly and with oversimplification, the debate can be divided into two representative camps: Retributivists give desert a dominant, presumptively controlling role as the purpose for punishment and give the consequences of punishment no role in justifying punishment. (17) In contrast, "mixed" theorists--or "side-constrained consequentialists"--give instrumental goals such as crime prevention a critical role in justifying punishment but constrain this justification with a commitment to moral desert as a requisite to punishment. (18) John Rawls, H.L.A. Hart, and Norval Morris each prominently developed versions of this position decades ago. (19) Andrew von Hirsch and Andrew Ashworth, the most prominent advocates for punishment policy that emphasizes criminal sanctions' power to censure--to express blame or reprobation for culpable wrongdoing--are among the many who hold a version of the side-constrained consequentialist position now. (20) These two camps-retributivists and side-constrained consequentialists--differ in ways critical to enforcement practice and punishment policy and, more theoretically, regarding the role and obligations of the State toward its citizens. My focus, however, will be on the starkly different implications for enforcement practice and for the design of justice institutions.
This Article does not directly enter the debate on the central disagreement between these two views, namely, whether consequentialist concerns should play a role in justifying and implementing criminal law and punishment. Instead, it makes three broad points, all of which have practical implications for criminal justice administration. The first is that a purely or strongly retributivist criminal justice system would require a radically different set of institutions and practices from those that have developed in common law jurisdictions: different criminal codes, (21) different enforcement apparatuses, and different punishment practices. (22) Further, without such a near-revolution in Anglo-American criminal justice institutions, retributivism, if taken as policy prescription rather than solely as ideal theory, poses a serious risk of aggravating excessive punishment problems and other injustices in criminal law administration, where codes have been designed for discretionary application with an eye toward consequentialist concerns. Mixed accounts, in contrast, fit comfortably with traditional enforcement practices and also contain the conceptual components to address at least some features of expansive codes and sentencing rules. Mixed theories offer an account of criminal justice that is feasible to implement within longstanding Anglo-American justice institutions, which are constructed on some version of such an account (even though some practices violate commitments held by mixed instrumental/deontic theorists). To develop this point, the Article unpacks some of the underlying normative premises of criminal procedure as well as substantive law and...