This is a preview of subscription content, log in via an institution to check access.
References
David Dolinko, “Some Thoughts about Retributivism’,Ethics 101 (1991): 537–59.
Dolinko, 539.
Dolinko, 545.
Ibid.
Ibid.
Ibid.
Dolinko, 545–46.
Dolinko, 546.
Dolinko, 547–48. Dolinko seems unaware of Richard Burgh's well-known paper, ‘Do the Guilty Deserve Punishment?’,Journal of Philosophy 79 (1982); 193–210. He might have benefited from reading it. Burgh distinguishes four possible interpretations of unfair advantage, while Dolinko only manages two (both versions of Burgh's second).
Dolinko, 548.
Dolinko, 539n.
R. A. Duff, ‘Auctions, Lotteries, and the Punishment of Attempts’,Law and Philosophy 9 (1990): 1–37; Don E. Scheid, ‘Davis and the Unfair-Advantage Theory of Punishment: A Critique’,Philosophical Topics 18 (1990): 143–70; and Andrew von Hirsch, ‘Proportionality in the Philosophy of Punishment: From “Why Punish?” to “How Much?”’,Criminal Law Forum 1 (1990): 259–90.
Von Hirsch: 266–67. Compare Duff: 15–16 (“we can have no confidence that the auction will generate a “ranking of crimes ... which matches at all closely what we would regard as a plausible ranking according to their seriousness”); and Scheid: 158 (“it does not rectify what standard principles of corrective justice require”). See also Hyman Gross, ‘Fringe Liability, Unfair Advantage, and the Price of Crime’,Wayne Law Review (1987): 1395–411, especially, pp. 1401.
Michael Davis, ‘How to Make the Punishment Fit the Crime’,Ethic 93 (1983): 736–37 (brackets indicate changes made to clarify). Scheid: 169 (note 51), remarks the resemblance between this procedure and that found in John Kleining,Punishment and Desert (Martinus Nijhoff: The Hague, 1973), Ch. 7. John Braithwaite and Philip Pettit,Not Just Deserts (Clarendon Press: Oxford, 1990), p. 150, do the same. The two procedures should not be confused. Like Mabbott's, the parent of both, mine is designed for justified criminal punishment (and close relatives), not (as Kleinig's is) forany morally justified punishment. Some details, especially ranking by type, are new (and as I will soon show, important). Compare J. D. Mabbott, ‘Punishment’,Mind 48 (1939): 152–67, esp. p. 162. (I am embarrassed to say that I did not come across Kleinig's book until 1988).
Note that my analysis of seriousness of crime (what rational people fear) differs from the common retributivist analysis in terms of “harm”. For the importance of this difference, see Michael Davis, ‘Harm and Retribution’,Phi-losophy and Public Affairs 15 (1986): 236–66. For an (unintended) illustration of the disadvantages of harm, see Andrew von Hirsch and Nils Jarebog, ‘Gauging Criminal Harm: A Living-Standard Analysis’,Oxford Journal of Legal Studies 11 (1991): 1–38. Von Hirsch here limits himself to crimes with identifiable victims (a small part of the criminal law) and to sentencing within a statutory scheme rather than to setting statutory penalties. This, of course, is by far the easiest part of the problem of determining just deserts. Even so, he promises much while delivering little.
Michael Davis, ‘Using the Market to Measure Deserved Punishment’.Iyyun 39 (1990): 295–320.
I owe this convenient term to Scheid: 157. Note his observations that “[Davis has provided] a fifth possible meaning ... to be added to Burgh's list [of four]”.
While not the only objection these three writers make in the papers cited, it is the only one I shall be concerned with here — both because space does not allow me to do much more and because I believe I have dealt adequately with the remaining important ones elsewhere. See ‘Criminal Desert, Harm, and Fairness’,Israeli Law Review 25 (1991): 524–48; ‘Postscript: In Fairness to Condemnation’,Israeli Law Review 25 (1991): 581–94; and, especially, ‘Using the Market’.
Compare Scheid: 163: “[The fairness] theory requires more than simple oridnal matching and more than proportional matching. It requires matchings that exactly annul, that is, absolute matching.” Scheid is right that the fairness theory requires that absolute matching. He is mistaken only in thinking absolute matching a problem for the fairness theory. He thinks it a problem because the assumes matching must be anatural fact (analogues to the energy necessary to change ice to water). In fact, “absolute matching” is, like “full payment”, not a natural fact but a social relation presupposing conventions for setting “prices” and making “payment”. Criminal desert presupposes a complex social relation, the criminal law of a relatively just society (including both a list of crimes and a list of penalties). The fairness theory provides a means for constructing a system of exact matchingwithin the bounds of justice, not for discovering it in nature. Those who look for just punishment in nature will find nothing but scattered boulders waiting the hand of architect and mason. Those who look for it within the complex social relations of the criminal law will find a structure enough like the market's to make the market a useful model for determining what justice allows (or, in some cases, requires).
Scheid: 148–49.
Scheid: 149.
Compare Scheid: 147–48: “Strictly speaking, the amount of money would-be criminals pay for crime licenses under the model will reflect their (aggregate)perception of the (unfair) advantage they expect to gain by committing the crime, rathern than the unfair advantages that actually accrue. Nevertheless, while crime-licenes prices will reflect subjective perceptions, the relative ranking of actually-accruing advantage might well come out the same, especially under an on-going market arrangement.”
Compare Duff. 12–13, with my ‘Using the Market’, especially, 308–13. One of this journal's reviewers raised a related objection: “The ‘supply’ of crimes is determined by looking at the resources we currently devote to preventing various crimes and thus to the level of each type we are willing to tolerate. But among other things that determine supply is the severity of punishment we mete out for each crime. We can reduce crime either by devoting more resources to the police, etc.,or by increasing the severity of punishment. Therefore the supply of crime is a function of the severity of punishment we choose. But the ‘price’ of crime — and therefore the unfair advantage it represents — is a function of its supply (as well as of demand). And the ‘price’ is a measure of criminal desert. Thus, it seems to follow that criminal desert is a function of the severity of the punishment we choose! But this can't be correct ...” It isn't. The point of the assumption defining the market is to filter out irrelevant factors. If an argument (such as this one) reveals an irrelevant factor, then I will try to filter it out. But there is no need to do that this time. The critic has simply confused the model with what it models. He is right that,in the model, supply is determined by a social decision, one presumably made by looking at the resources the society wants to devote to prevention. But he is wrong that severity of punishment is a factor in determining supply in a way threatening the model. I originally avoided that threat by recognizing “poaching” as a possible meta-crime to be punished in the same way whatever the corresponding license would be. For those who find “poaching” troublesome, I offered instead the less plausible (but still workable) assumption that no crime will be committed without a license (so long as licenses are not too few). Either way, the differentials in demand for crime will not be a function of differentials in severity of punishment for those crimes. Only in this world (rather than the model) does ‘price’ (severity of punishment) affect ‘demand’ (incidence of crime). How much effect is, of course, a vexed question. But, whatever it is, in this world, desert should be figured ignoring that effect (as it is in the seven-step method).
For example, Duff. 9–10; and Scheid, 160–61.
Von Hirsch: 267.
Ibid.
Ill. Rev. Stat. (1991) Ch. 38 sec. 12–2 and sec. 1005-8-3; Ch. 38 sec. 12–3 and sec. 1005-8-1.
Ill. Rev. Stat. (1991) Ch. 38 sec. 16-1.
We can quickly respond to Dolinko's counterexample to Sher in the same way. Murder, a violent crime, will have to be ranked against other violent crimes like battery, aggravated battery, armed robbery, and so on. Given a choice between being robbed at gunpoint and being murdered (with or without robbery), most of us would choose being robbed. So, murder must be ranked higher than armed robbery. Given a choice between suffering armed robbery (in ourselves or through those we care about) and suffering tax evasion (through a government we care about), most of us would choose to suffer tax evasion. So, tax evasion must be ranked lower than armed robbery. And so, contrary to what Dolinko supposed, the fairness theory would rank tax evasion below murder, not above it (even though they never come into direct comparison).
I make this point explicitly in ‘Harm and Retribution’: 266. For an example of how the seven-step method might be used to settle a controversy, see ‘Setting Penalties: What Does Rape Deserve?’,Law and Philosophy 3 (1984): 61–110, especially, 100–01. For examples of the use of the market on more complex issues, see my ‘Just Deserts for Recidivists’,Criminal Justice Ethics 4 (1985): 29–50; ‘Why Attempts Deserve Less Punishment Than Complete Crimes’,Law and Philosophy 5 (1986): 1–32; or ‘Strict Liability: Deserved Punishment for Faultless Conduct’,Wayne Law Review 33 (1987):1363–93.
Perhaps this is the place to deal summarily with a related criticism von Hirsch, citing Duff, makes on p. 269. There is, he thinks, something artificial about explaining the sentence of a convicted murderer or robber only by the unfair advantage he took. We should also refer to the harm he did, the rights he violated, or to other morally interesting features. I agree. So what? As I under stand the sentencing process, any reference to relative unfair advantage is appropriate only to explain why the maximum legal punishment for that crime is deserved. The judge is free to refer to the harm the criminal did, to the rights he violated, or the like to explain the crime's relative rank since such matters are relevant to “supply” decisions (as I have been at pains to argue) and so to unfair advantage. The judge is also free to refer to such things for other purposes, for example, to explain why she did not show merry, to remind the criminal of the nonlegal reasons for not committing the crime, or simply to express her outrage at the crime. The fairness theory does not forbid carrying out such other purposes during sentencing (though it does limit how such purposes can be carried out). Much the same would be true of legislative discussions.
Author information
Authors and Affiliations
Additional information
I should like to thank Don Scheid, R. A. Duff, and participants in the Philosophy Colloquium, Illinois Institute of Technology, October 16, 1991, for helpful comments on earlier drafts of this article.
Rights and permissions
About this article
Cite this article
Davis, M. Criminal desert and unfair advantage: What's the connection?. Law Philos 12, 133–156 (1993). https://doi.org/10.1007/BF02346476
Issue Date:
DOI: https://doi.org/10.1007/BF02346476