The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby loses crime-control effectiveness. These crime-control benefits, together with an analysis of the sometimes-disqualifying weaknesses of alternative distributive principles such as general deterrence and incapacitation of the dangerous, suggest that maximizing the criminal law’s moral credibility is the best distributive principle available. Critics have offered a range of objections to this proposal, which are here considered and answered.
Empirical desert, blameworthiness proportionality, legitimacy, coercive crime control, normative crime control, empirical studies, distributive principles, community norms, code-community conflicts, natural experiments, vigilantism, legitimacy-compliance dynamic
Southern California Interdisciplinary Law Journal
31 S. Cal. Interdisc. L.J. 277 (2022).
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