Abstract
When it comes to the question of how much the state ought to punish a given offender, the standard understanding of the desert theory for centuries has been that it should give him a penalty proportionate to his offense, that is, an amount of punishment that fits the severity of his crime. In this article, we maintain that a desert theorist is not conceptually or otherwise required to hold a proportionality requirement. We show that there is logical space for at least two other, non-proportionate ways of meting out deserved penalties, and we also argue that they have important advantages relative to the dominant, proportionality approach.
Highlights
We argue in effect that this conceptual analysis is flawed; there is logical space for something to count as a deserved penalty that is not proportionate
We articulate two alternatives to the standard view, and we show that they are comparably motivated by the considerations that move philosophers to reject forward-looking theories of sentencing in favor of proportionality
The natural objection that is surely to come from adherents to the standard view of deserved penalties is that the ones prescribed by the range view, if not the asymptotic view, are intuitively too light
Summary
According to the desert theory of legal punishment, a political organization, such as a state, ought to intentionally harm or subordinate people because they have done something in the past with a negative valence, such as broken a just law that merits a similar response, i.e., one of a negative kind with a comparable degree. It is one instance of a family of what may be broadly called ‘retributive theories’, which base the justification of legal punishment principally on facts about the past as opposed to its expected consequences in the future. We conclude by addressing one natural objection that adherents to the standard view would be sure to make and by suggesting some topics for further reflection, supposing that non-proportionate desert is to be taken seriously (Section 5)
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