Empirical Desert

Paul H. Robinson, University of Pennsylvania Carey Law School

In Robinson, et al. (eds.), Criminal Law Conversations (2009).


It has long been assumed that the goals of doing justice and fighting crime necessarily conflict. Retributivists and utilitarian crime-control advocates commonly see their dispute as irreconcilable, and in a sense it is. It is argued here, however, that in another sense these two fundamental aims of criminal justice may not conflict. Doing justice may be the most effective means of fighting crime. The extent of the criminal law's effectiveness in avoiding resistance and subversion of an unjust system, in bringing the power of stigmatization to bear, in facilitating, communicating, and maintaining societal consensus on what is and is not condemnable, and in gaining compliance in borderline cases through deference to its moral authority is to a great extent dependent on the degree to which the criminal law has earned moral credibility with the citizens governed by it. Thus, the criminal law's moral credibility is essential to effective crime control, and is enhanced if the distribution of criminal liability is perceived as "doing justice," that is, if it assigns liability and punishment in ways that the community perceives as consistent with their shared intuitions of justice. Conversely, the system's moral credibility, and therefore its crime control effectiveness, is undermined by a distribution of liability that deviates from community perceptions of just desert. The hitch is that it is not moral philosophy's deontological notion of justice that has crime-control power but rather the community's notion of justice, what has been called "empirical desert." This turns out to be both good and bad for constructing a distributive principle for criminal liability and punishment. On the one hand, unlike moral philosophy's deontological desert, empirical desert can be readily operationalized – its rules and principles can be authoritatively determined through social science research into peoples' shared intuitions of justice. On the other hand, people's shared intuitions about justice are not justice, in a transcendent sense. People's shared intuitions can be wrong. In the end, however, the retributivist may find that an instrumentalist distributive principle of empirical desert will produce far more deontological desert than any other workable principle that could or would be adopted. This short essay is a core text for the Criminal Law Conversations project. Comments on it and author responses to the comments are available on the project's website. Available for download at http://ssrn.com/abstract=1148907