Deviations from Empirical Desert

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Book Chapter

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This chapter begins by discussing how some deviations from empirical desert are inevitable. It identifies three distinct practical-constraint rationales driving rules that deviate from desert. The first concern is that, in some situations, a pure desert-based rule would allow manipulation of juries into voting for improper acquittals. The second rationale, at the root of such rules as statutes of limitation and the use of strict liability, reflects concerns about the reliability of evidence and the unavoidable difficulty of using fallible or incomplete evidence to prove a person's guilt or innocence with any certainty. The third concern touches practices such as plea bargaining and witness immunity that are predicated on the claim that, given constraints on available time, resources, and fact-seeking capacities, the system can maximize justice overall by making compromises in individual cases. The chapter then considers some justifications for deviating from empirical desert. It suggests that adopting criminal liability and punishment rules that deviate from existing judgments of justice may be a necessary part of a social engineering program. It examines the challenges brought by such programs and advises reformers how they might most effectively change community views of justice. The final section introduces the literature suggesting that lay perceptions of fairness in adjudication procedures can build a sense of “legitimacy” in the criminal justice system.


criminal law, criminal liability, punishment, Criminal justice system, moral credibility, social engineering programs, fairness

Publication Title

Intuitions of Justice and the Utility of Desert