The Role of Moral Philosophers in the Competition Between Deontological and Empirical Desert

INTRODUCTION Desert has become increasingly attractive as a principle by which to distribute criminal liability and punishment. A number of modern sentencing guidelines have adopted it as their distributive principle. (1) Most recently, a committee of the American Law Institute proposed revising the Model Penal Code "purposes" section to adopt desert as the dominant distributive principle. (2) But these reforms, and the current debates, are unclear as to whether the conception of desert under consideration is a deontological or an empirical one. (3) The two can be quite different. A deontological conception of desert, based on reasoning from principles of right and good and aimed toward giving us a transcendent notion of justice, (4) would distribute criminal liability and punishment differently than would an empirical conception of desert, based upon empirical research into the shared intuitions of justice of the community that is to be governed by the code or practice being formulated. For example, moral philosophers disagree about the significance of resulting harm, and each side of the debate has plausible arguments to make. (5) In contrast, all available data suggest a nearly universal and deeply held view among the community that resulting harm does matter, that it increases an offender's deserved punishment. (6) This practical difference is only one of a host of issues on which a moral philosopher's conclusion might vary from the empirical data on lay persons' shared intuitions of justice. (7) Should we prefer one conception of desert over the other for use as a distributive principle for criminal liability and punishment? Each of the two competing conceptions of desert offer distinct advantages and disadvantages. I. DEONTOLOGICAL DESERT Deontological desert can offer a unique and critically important value to the criminal justice law- or policymaker: it can provide a foundation for desert that transcends any particular case, community, or culture. That is, it can give us a means by which we can tell the truth of what is deserved, insulated from the vicissitudes of human irrationality and emotions. This deontological conception of desert gives us the ability to determine when our shared intuitions of justice may be wrong. Even though a liability or punishment rule may be popular, it nonetheless may be unfair or unjust, and the deontological conception of desert lets us spot these justice errors in people's intuitions. The standard complaint against relying upon such a deontological conception of desert in distributing criminal liability and punishment is that it leads to disutility. (8) Those consequentialists who seek to minimize future crime, for example, will be quick to point out that deontological desert as a distributive principle will allow future crimes to occur that could have been avoided under a utilitarian distributive principle. (9) Traditionally, that fact has meant a utilitarian preference for distributing liability to optimize deterrence, rehabilitation, incapacitation, or some combination of them. (10) II. EMPIRICAL DESERT Reliance upon an empirical conception of desert in the distribution of criminal liability and punishment prompts its own set of complaints. One primary objection is that people's intuitions of justice are too vague and suffer too much disagreement to be effectively operationalized. But empirical studies show this common wisdom to be false. In fact, people's shared intuitions of justice are quite nuanced: small changes in facts produce large and predictable changes in the assessment of blameworthiness. (11) Further, an astounding level of agreement exists across cultures and demographics on the relative degree of blameworthiness. Although people and cultures disagree about the general level of punishment severity a criminal justice system should adopt, once the endpoint of a society's punishment continuum is set, there is significant agreement on the ordinal ranking of cases along that continuum, at least for the core wrongs of physical aggression, unconsented-to takings, and deception or dishonesty in exchanges. …