Friday, November 20, 2009
Anthony M. Dillof (Wayne State University Law School) has posted an interesting piece, Modal Retributivism: A Theory of Sanctions for Attempts and Other Criminal Wrongs, on SSRN. Here is the abstract:
How much punishment, in terms of size and severity, should a person get for a given offense? There are, broadly speaking, two well-established theories of criminal punishment: utilitarianism and retributivism. The first provides an answer to the question posed – punish as much as needed to maximize social welfare. With this, the theoretical work is done; only empirical work remains. The second theory also provides an answer – as much as deserved. In contrast to the first answer, however, theoretical work must be done to explicate the concept of desert. This has not been done in a systematic way with respect to the range of criminal offenses. The article attempts to think systematically about what sanctions are deserved for offenses both of offenses of harm-causing, like murder, and inchoate offenses, like attempts, as well as offenses of negligence and crimes of passion. Thus, the article attempts to answer the question of criminal punishment severity in a unified, principled manner.
The article begins by considering and critiquing harm-based retributivism. Harm-based retributivism is a leading theory of punishment. According to it, the punishment an actor deserves depends on the harm he is culpably responsible for causing – the greater the harm, the greater the punishment deserved. Harm-based retributivism has normative appeal for many and is consistent with the great majority of our punishment practices.
The article then advances a novel criticism of harm-based retributivism. The problem with harm-based retributivism, it is argued, is that it cannot be extended in a principled manner to inchoate offenses, such as attempts. An alternative to harm-based retributivism is intent-based retributivism – the theory that punishment for both consummate and inchoate offenses should be based solely on subjective factors such as the harm intended. Intent-based retributivism, however, is inconsistent with a wide-spread intuition that "harm matters."
In response to these criticisms, the article presents an alternative to both harm-based and intent-based retributivism. The alternative theory presented is called, largely for lack of a better name, "modal retributivism." The essence of modal retributivism is that under it, the fact that harm results from wrongful conduct is not relevant to the severity of the sanction deserved, as it is under harm-based retributivism, but rather, it is relevant to the sanction's mode as precatory ("should be imposed") or permissive ("may be imposed"). With this theory in place, punishment levels for inchoate crimes, such as attempts and reckless endangerment, are recommended. Next, punishment levels for crimes of passion and negligence are considered. Modal retributivism’s recommendations for crimes of intentional harm-causing are extended to these crimes.
Rather than building the case for modal retributivism from the ground up, the article seeks to take the existing components of retributive thought and reassemble them into a sounder structure. The cogency of the argument against harm-based retributivism and the appeal of modal retributivism will likely be strongest for those who allow reason, as opposed to intuition, a relatively great role in resolving moral issues.