The Case for Penal Modernism: Beyond Utility and Desert

Abstract

Our literature uniformly describes American criminal law as the product of a great clash between utility and desert. In the mid-twentieth century, the literature explains, utilitarianism dominated in American criminal law, in the form of what is sometimes called penal modernism, which emphasized incapacitation and rehabilitation. Beginning in the 1970s, however, America witnessed a revolt against penal modernism, as retributivists demanded a criminal law that respected the central importance of blame. That account of American criminal law is repeated so often and so confidently that it may seem obviously true. Yet this article argues that it is wrong, in ways that have led to deep misconceptions about criminal law. The clash between retributivism and penal modernism is not in fact a clash between utility and desert, but a clash between two different understandings of the place of blame in criminal law. Penal modernists were the great advocates of individualization: they argued, not that blame has no place in criminal law, but that we must blame offenders not offenses. Correctly understood, penal modernist individualization represents a serious challenge to retributivist approaches, and offers the foundation for a different and healthier moral attitude toward the criminal law.