Putting desert in its place.

• Author: Slobogin, Christopher
• Position: Empirical desert theory - Introduction to II. The Research B. Hypothesis II: Compliance 2. Studies 4A & B: What Type of Dissatisfaction Promotes the Most Noncompliance? p. 77-108

INTRODUCTION I. EMPIRICAL DESERT THEORY II. THE RESEARCH A. Hypothesis I: Consensus 1. Study 1: Is there consensus about the ordinal ranking of crimes? 2. Study 2: Is there consensus about the appropriate punishment for crimes? B. Hypothesis II: Compliance 1. Study 3: Does dissatisfaction with the law promote noncompliance? 2. Studies 4A & B: What type of dissatisfaction promotes the most noncompliance? 3. Study 5: How long does dissatisfaction with the law last? C. Hypothesis III: Crime Control 1. Study 6: To what extent are assessments of desert affected by preventive considerations? 2. Studies 7A, B & C: To what extent do laypeople prefer dispositions focused on prevention rather than desert? III. IMPLICATIONS AND FUTURE DIRECTIONS CONCLUSION APPENDIX A: SCENARIO PAIRS USED IN STUDIES 1, 2 & 3 APPENDIX B: SCENARIOS FOR STUDIES 4A & 4B APPENDIX C: SCENARIOS FOR STUDIES 6, 7A, 7B & 7C APPENDIX D: DEMOGRAPHIC INFORMATION INTRODUCTION

The age-old debate among criminal law theoreticians over whether desert or prevention ought to drive criminal justice has taken on a new cast during the past few years. The old debate featured deontology against utilitarianism: put simply, should offenders be punished according to their moral blameworthiness or should concerns about protecting society be the focus of punishment? Numerous thinkers have staunchly staked out positions at opposite ends of the spectrum, while others have tried to reach some type of compromise between the two. (1) But the consistent theme in the debate has been that a theory that bases punishment on the offender's degree of culpability is frequently in significant tension with the view that punishment should focus on how subsequent offending can be prevented. (2)

In the new debate both sides are more optimistic about resolving this tension, perhaps because both sides are willing to abandon the deontological view of desert. In the new debate the value of a culpability-based punishment system is no longer assessed through the prism of moral philosophy but rather in terms of its utility at achieving the goals of the criminal justice system. Thus, where the two sides differ is not over methodology but over whether crime control and respect for the law is best achieved through a system focused on desert or through a prevention-based regime that is sensitive to desert only when ignoring it would have criminogenic impact.

Most of the literature in this new debate has favored the first stance. The principal proponent of that view has been Paul Robinson, who has coined the term "empirical desert" to capture the idea that a criminal justice system that tracks empirically derived societal views of desert may best facilitate the law's ability to assure compliance with legal prohibitions. (3) Relying on a considerable amount of research, much of which he has helped conduct, Robinson contends that "a criminal justice system that distributes liability and punishment in concordance with the citizens' shared intuitions of justice ... may provide greater utility than a distribution following the more traditional instrumentalist approach of optimizing deterrence or incapacitation." (4)

The competing view is not as well developed, and in fact has yet to be explicitly articulated. This Article aims to provide that articulation. The theory is that while liability rules should still depend primarily on desert, punishment rules that focus on the utilitarian goals of specific deterrence, rehabilitation, and incapacitation ("individual prevention" goals (5)) are not only superior at accomplishing crime prevention but can also usually assuage society's urge for retribution well enough to avoid vigilantism, norm breakdown, and other negative effects. This Article presents original research that supports this approach to punishment, which could be called "preventive justice."

Both empirical desert and preventive justice are leery of deontological theories. Both also try to reconcile retributive instincts with more explicitly preventive goals. The distinction between the two lies in how they evaluate the utility of desert. This Article's investigation suggests that empirical desert exaggerates desert's utility as a crime prevention mechanism while unduly minimizing the efficacy of preventive justice. When added to the other possible deleterious effects of reliance on desert as the linchpin of punishment policy--effects ranging from unusually harsh sentences to expensive imprisonment schemes--the unclear preventive payoff associated with empirical desert may mean that preventive justice is a superior approach from a utilitarian perspective. If so, a sentencing regime that favors broad and flexible dispositional ranges should be favored over one that is centered on desert as defined by surveys of the public.

Part I of this Article describes empirical desert theory in more detail and summarizes it in terms of three testable hypotheses. The first hypothesis is that societal consensus about punishment exists, at least for "core crimes" such as homicide and robbery, and that this consensus is based on desert considerations (the consensus hypothesis). The second hypothesis is that a failure to adhere to this consensus will induce dissatisfaction with the law, which in turn will increase noncompliance with it (the compliance hypothesis). The third hypothesis is that the noncompliance produced by a punishment regime that departs substantially from empirically derived desert will exceed the noncompliance such a regime would prevent, even if the regime is designed to further utilitarian goals such as general deterrence, incapacitation, and rehabilitation (the crime control hypothesis).

Part II reports seven studies that test these hypotheses from various angles. The first two studies explore the consensus hypothesis. The results of the first study suggest that to the extent consensus about the ordinal ranking of crimes exists, it is based as much on utilitarian considerations as on desert. (6) And the findings of the second study indicate that consensus about cardinal, as opposed to ordinal, punishment is hard to come by even with respect to the most common crimes, a result that may doom empirical desert's objective of constructing a punishment system that reflects societal views. (7) The next three studies call into question the compliance hypothesis, because they find little evidence that divergence from societal views about punishment--whether desert- or utilitarian-based--significantly increases willingness to break the law or diminishes respect for it, especially once the passage of time makes the divergence less salient. (8) Further, to the extent that these studies do find such a relationship, they suggest--contrary to the third (crime control) hypothesis--that noncompliance is just as likely when the criminal law departs from utilitarian goals. The final two studies begin to investigate a counterhypothesis to the crime control hypothesis: that punishment explicitly focused on utilitarian goals can satisfy retributive urges. (9) They suggest that information about plausible treatment programs directly affects assessments of desert and creates a tendency to prefer indeterminate over determinate sentences. (10)

Part III, which discusses the implications of this research, concentrates on these latter findings. Punishment focused on prevention is unlikely to cause major dissatisfaction with the justice system, or more noncompliance with the law, than it preempts through incapacitation, rehabilitation, and deterrence, (11) unless it represents a radical departure from desert (which is most likely in connection with very serious crimes). Thus, from a utilitarian perspective--the perspective taken by empirical desert--desert should probably play a secondary role. The optimal sentencing system from a crime control standpoint is likely to be one focused explicitly on prevention goals, so long as doing so is not so antithetical to desert that it creates a real possibility of social disruption.

1. EMPIRICAL DESERT THEORY

   Joe has just been convicted of armed robbery. What should happen to him now? A retributivist--one who thinks desert should drive the punishment decision-would want Joe's disposition to be proportionate to his culpability, as measured by the relative gravity of the offense, the blameworthiness of the offender, and the harm to the victim or victims. (12) Most desert theorists would probably conclude that armed robbery falls between murder and burglary on the gravity and harm spectra. So if a murderer deserves a twelve-year sentence and a burglar a two-year term, Joe might receive seven years in prison or an equivalently punitive disposition, perhaps boosted upward by a couple of years if he was the mastermind of the heist, or downward by a few years if he appeared to be a bit player in the crime or was cajoled into it.

   A utilitarian--one who is interested primarily in crime prevention--might arrive at a quite different sentence, depending upon how costs and benefits are calculated. A desert-based sentence for someone like Joe might be unnecessarily long or too short to achieve general deterrence. (13) Furthermore, if Joe is a career criminal he may require enhanced confinement, whereas if he was simply a tagalong first-time offender or repents his actions in a way that suggests he will not reoffend, the utilitarian might significantly reduce or conceivably even eschew the confinement that desert theory would require for armed robbery (although some form of community supervision would probably be warranted). (14) If Joe's involvement in the robbery were linked to treatable problems--such as unemployment, mental disability, or substance abuse--a utilitarian would also consider rehabilitation programs that would last as long as necessary to remedy the problem, a period that might be shorter or longer than a desert-based disposition and which, again, would not...