Desert, democracy, and sentencing reform.

• Author: Ristroph, Alice

1. INTRODUCTION

   Exactly how much punishment an offender deserves is something of a metaphysical mystery, or so it has appeared to be in the past. Recently, a number of scholars and the American Law Institute (ALI) have advocated renewed attention to desert as a limiting principle for criminal sentencing. (1) By insisting that criminal punishments be no more severe than what offenders deserve, scholars and practitioners hope to reverse the thirty-year trend of increasingly severe sentences. The new discourse of desert comes at a time when legal scholarship and law reform are increasingly attentive to empirical research and, perhaps, increasingly impatient with metaphysical mysteries. The arguments for desert as a limiting principle often point to empirical findings in social psychology or public opinion research that individual judgments about relative desert (who should be punished more severely: a car thief or a murderer?) are fairly consistent, even if judgments about absolute desert (does a car thief deserve one year in prison or ten?) fluctuate more widely. Moreover, proponents argue, desert is mysterious only if we demand precision. If instead we rely on the concept of desert to delineate a range of permissible punishments, we can then consult other sentencing purposes--such as deterrence or incapacitation--to determine the precise penalty.

   Of course, the general claim that sentences should give offenders their just deserts--nothing more, nothing less--is hardly novel. It has long been a key tenet of retributive theories of punishment. But many of the current advocates of desert as a limiting principle disavow a full-fledged and exclusive commitment to retributive theory. The state may pursue many non-retributive goals in its sentencing policy; desert as a limiting principle simply prescribes upper (and perhaps lower) limits to the range of punishments that may be imposed in pursuit of these non-retributive goals.

   The social science research on desert judgments appears to give desert some empirical basis, but this is not its only attraction. The reported consistency of judgments of relative desert helps establish the democratic legitimacy of sentencing policies based on desert. Given these findings, a sentencing commission or other body of experts could establish a scale that ranks offenses in accordance with democratic judgments about their relative severity. Some further factor, such as available corrections resources, will be necessary to anchor the ends of the scale, but popular conceptions of desert can at least guide the internal ranking of offenses.

   There is something at least superficially contradictory about invoking allegedly democratic conceptions of desert to challenge sentencing practices established by democratic legislatures. Given that empirical research shows consensus only on relative assessments of offense seriousness, not on non-relative judgments of desert, it seems particularly amiss to invoke that research to challenge the endpoints of the scale rather than its internal order. But perhaps current calls for attention to desert should be viewed simply as efforts to honor democratic judgments, even as we encourage more consistency, more fidelity to our professed political commitments, and more care in negotiating among those various commitments.

   These efforts are surely worthwhile. Nevertheless, desert's current favor among academics and policymakers seems overly optimistic, especially given the ways in which conceptions of deserved punishment have functioned in political and legal discourse. The rush to codify desert as a limiting principle has not yet faced much skepticism or scrutiny. (2) In a skeptical spirit, this Article examines the operation of desert and finds that in legal and political practice, desert has proven more illimitable than limiting. Democratic conceptions of desert are first, elastic: desert is hard to quantify and easy to stretch. In practice, in the face of ever-increasing criminal sentences, many decision-makers and spectators of the criminal justice system have found it easy to conclude that offenders deserve just as much punishment as they get. Many of the sentencing policies alleged by academics to violate "desert as a limiting principle" were (and continue to be) popularly justified in the language of desert. Long prison sentences for repeat offenders, harsher punishments for juveniles, and more limited reprieves for allegedly mentally ill or mentally retarded offenders have all been criticized by some as undeserved, and defended by many more as the offenders' just deserts. Like the notion of harm, which was also once invoked as a meaningful limitation on the penal power, the concept of desert has proven quite capacious. (3)

   Moreover, desert is opaque: it is difficult to know or control which particular details of an offender or offense inform a decision-maker's assessment of desert. Racial bias, fear, disgust, and other arbitrary factors can shape desert assessments, but they do so under cover of a seemingly legitimate moral judgment. Evidence of such bias is particularly evident in capital sentencing, a process in which the sentencer is encouraged to assess directly the defendant's desert. Even beyond capital sentencing, there is reason to believe that the factors influencing desert assessments are not always ones that a liberal democratic state should endorse. Thus, in addition to the reasons to doubt desert's practical efficacy as a limitation on criminal sentences, there are also normative reasons to reconsider the appeal of, and the appeals to, desert.

   To the extent that critics of retributive theory have previously expressed doubts about desert, they have focused on practical obstacles to the quantification of desert more often than the normative claim that if we know what people deserve, the state should seek to give it to them. The theorists' inattention to the general principle of punitive desert is particularly odd, for a great deal of contemporary political theory closely scrutinizes desert as a principle of distributive justice. John Rawls's influential A Theory of Justice famously rejected the notion that wealth should be distributed according to moral desert, (4) and numerous theorists of distributive justice have debated the merits of Rawls's claim. (5) But a fundamental distinction between distributive and retributive justice, declared by philosopher's flat and rarely seriously questioned, has protected criminal desert from the critical scrutiny applied to desert as a principle of wealth distribution. (6) These two opposing views of desert--skepticism or outright rejection of desert as a principle of distributive justice coupled with uncritical acceptance of desert in the criminal law--seems all the more remarkable given the close correlation between poverty and crime.

   Or perhaps this is not so remarkable. As retributivists frequently emphasize, most poor people are not criminals even if most criminals are poor. The link between poverty and crime is not absolute, so retributivists can argue that it does not implicate their basic premise that crime is a product of individual choice and a basis of moral desert. In fact, perhaps the concept of desert encourages us to ignore the relationship between poverty and crime altogether. The normative judgment that those who break the law are morally deserving of punishment renders irrelevant the more or less uncontroverted fact that the poor are much more likely to break the law. In an age in which empirical scholarship is increasingly prioritized, this effect of desert theory should not be minimized, for we should keep in mind the ways in which normative commitments make certain empirical information disappear from view. (7)

   This Article seeks to evaluate critically the invocation of desert as a sentencing principle. It proceeds by exploring the interplay among the philosophy of desert, as articulated by legal theorists and philosophers; the psychology of desert judgments, as evidenced by social science research; and the political and legal operation of desert rhetoric, as evidenced by legal discourse and developments in sentencing policy. A study of the actual deployment and operation of the concept of desert suggests that, contrary to many theorists' hopes, democratic conceptions of desert are too malleable to serve as a meaningful limiting principle. There is more hope for desert as a limiting principle if we empower elites (such as sentencing commissions or academic criminal justice experts) to assess desert, but only if the elites are actually inclined to limit sentences and other political actors are willing to leave the elites' assessments undisturbed. And desert poses still other complications for sentencing policy: the opacity of desert claims may enable prejudice to take effect in sentencing practices even as the moralistic tenor of desert rhetoric shields sentencing practices from meaningful scrutiny.

   Given the long history of debates among proponents of different sentencing purposes and punishment theories, a caveat is in order. I do not aim or expect to unsettle the core conviction of strong retributivists that wrongdoers deserve to be punished. For many, the commitment to retributive desert appears to be more a matter of intuitive and non falsifiable moral conviction than of argument. I lack retributive intuitions, but I do not dispute their existence or force. But we should try to distinguish the matter of wrongdoers' metaphysical desert from the question whether and how the state should use desert as a political and legal basis for its sentencing practices. Especially to those who adopt desert only because it appears instrumentally valuable, I urge closer scrutiny of desert and attention to its pernicious effects. Even if desert is a permanent part of our moral discourse, it need not and should not be elevated to a central and independent sentencing principle.

2. THE...