The role of moral philosophers in the competition between deontological and empirical desert.

• Jurisdiction: United States
• Date: 01 April 2007
• Author: Robinson, Paul H.
• Published date: 01 April 2007
• Author: Robinson, Paul H.

INTRODUCTION

Desert has become increasingly attractive as a principle by which to distribute criminal liability and punishment. A number of modern sentencing guidelines have adopted it as their distributive principle. (1) Most recently, a committee of the American Law Institute proposed revising the Model Penal Code "purposes" section to adopt desert as the dominant distributive principle. (2)

But these reforms, and the current debates, are unclear as to whether the conception of desert under consideration is a deontological or an empirical one. (3) The two can be quite different. A deontological conception of desert, based on reasoning from principles of right and good and aimed toward giving us a transcendent notion of justice, (4) would distribute criminal liability and punishment differently than would an empirical conception of desert, based upon empirical research into the shared intuitions of justice of the community that is to be governed by the code or practice being formulated. For example, moral philosophers disagree about the significance of resulting harm, and each side of the debate has plausible arguments to make. (5) In contrast, all available data suggest a nearly universal and deeply held view among the community that resulting harm does matter, that it increases an offender's deserved punishment. (6) This practical difference is only one of a host of issues on which a moral philosopher's conclusion might vary from the empirical data on lay persons' shared intuitions of justice. (7)

Should we prefer one conception of desert over the other for use as a distributive principle for criminal liability and punishment? Each of the two competing conceptions of desert offer distinct advantages and disadvantages.

1. DEONTOLOGICAL DESERT

   Deontological desert can offer a unique and critically important value to the criminal justice law- or policymaker: it can provide a foundation for desert that transcends any particular case, community, or culture. That is, it can give us a means by which we can tell the truth of what is deserved, insulated from the vicissitudes of human irrationality and emotions. This deontological conception of desert gives us the ability to determine when our shared intuitions of justice may be wrong. Even though a liability or punishment rule may be popular, it nonetheless may be unfair or unjust, and the deontological conception of desert lets us spot these justice errors in people's intuitions.

   The standard complaint against relying upon such a deontological conception of desert in distributing criminal liability and punishment is that it leads to disutility. (8) Those consequentialists who seek to minimize future crime, for example, will be quick to point out that deontological desert as a distributive principle will allow future crimes to occur that could have been avoided under a utilitarian distributive principle. (9) Traditionally, that fact has meant a utilitarian preference for distributing liability to optimize deterrence, rehabilitation, incapacitation, or some combination of them. (10)

2. EMPIRICAL DESERT

   Reliance upon an empirical conception of desert in the distribution of criminal liability and punishment prompts its own set of complaints. One primary objection is that people's intuitions of justice are too vague and suffer too much disagreement to be effectively operationalized. But empirical studies show this common wisdom to be false. In fact, people's shared intuitions of justice are quite nuanced: small changes in facts produce large and predictable changes in the assessment of blameworthiness. (11) Further, an astounding level of agreement exists across cultures and demographics on the relative degree of blameworthiness. Although people and cultures disagree about the general level of punishment severity a criminal justice system should adopt, once the endpoint of a society's punishment continuum is set, there is significant agreement on the ordinal ranking of cases along that continuum, at least for the core wrongs of physical aggression, unconsented-to takings, and deception or dishonesty in exchanges. (12) Thus, empirical desert does not produce an indeterminate range of punishment, as some have suggested, (13) but rather a specific amount. It is not that a particular violation necessarily deserves a specific amount of punishment in some absolute sense; rather, each violation, once placed on a fixed continuum of punishment, deserves a particular amount of punishment because that amount is required to give that violation its proper ordinal ranking among the range of possible violations. One can easily imagine how the erroneous common wisdom about disagreement developed: disagreement over general punishment severity--the continuum endpoint--masked the agreement on the ordinal ranking of violations.

   As noted, the broad consensus on ordinal ranking exists primarily for the core wrongs: injury to others, the taking of property, and deceit or dishonesty in dealings. (14) As the harm or wrong moves away from this core, disagreements appear across cultures and demographics, depending primarily upon the perceived strength of the analogy between the new conduct and the core wrongs. Ultimately, operationalizing empirical desert is quite feasible, more so than deontological desert, because of the higher level of agreement on the former than the latter.

   Consequentialists might offer a second kind of objection to empirical desert as a distributive principle, similar to the disutility complaint they make against deontological desert: such a desert distribution of criminal liability and punishment allows future crime that could be avoided with a distribution that optimizes deterrence, rehabilitation, incapacitation, or other traditional utilitarian crime control mechanisms. (15) But, as I have suggested elsewhere, strong arguments suggest greater utility in a distribution based on shared intuitions of justice than in a distribution based upon optimizing deterrence, rehabilitation, or incapacitation. (16)

   To briefly summarize those "utility of desert" arguments: (17) deviating from a community's intuitions of justice inspires resistance and subversion among participants--juries, judges, prosecutors, and offenders--when effective criminal justice depends upon acquiescence and cooperation. (18) Relatedly, some of the system's power to control conduct derives from its potential to stigmatize violators--with some persons this is a more powerful, yet essentially cost-free, control mechanism compared to imprisonment. (19) Yet the system's ability to stigmatize depends upon it having moral credibility with the community; for a violation to trigger stigmatization, the law must have earned a reputation for accurately assessing what violations do and do not deserve moral condemnation. (20) Liability and...