Friday, February 11, 2011
An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender’s conduct should be considered in determining that offender’s desert. The more remote harms caused by offenders’ conduct, such as the effects of their offenses on the families and friends of their victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article takes a first look at this neglected issue of the role that more remote harms should play in sentencing and asserts that accounting for these more remote harms would better reflect the basic tenets of retributivism. The Article acknowledges some of the challenges of embracing the totality of the theory of retribution and concludes that a legal limitation akin to the theory of proximate causation is necessary to reign in criminal liability under the theory.