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More on the Comparative Nature of Desert: Can a Deserved Punishment Be Unjust?


Adam and Eve have the same record yet receive different punishments. Adam receives the punishment that they both deserve, whereas Eve receives a more lenient punishment. In this article, we explore whether a deserved-but-unequal punishment, such as what Adam receives, can be just. We do this by explicating the conceptions of retributive justice that underlie both sides of the debate. We argue that inequality in punishment is disturbing mainly because of the disrespect it often expresses towards the offender receiving the harsher treatment, and also because it casts doubt on whether Adam got what he deserved. We suggest that when no disrespect is involved and when it is clear that the criminal got what he deserved, inequality is not worrisome.

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For helpful comments on earlier versions, we are very grateful to Larry Alexander, Yitzhak Benbaji, Mitch Berman, Yuval Elon, David Enoch, Adam Kolber, Saul Smilansky, David Wasserman and the University of Texas Law and Philosophy Reading Group.

1 See especially Desert and Justice, ed. Serena Olsaretti (Oxford, 2003).

2 For the exploration of these respects, see Kolber, Adam, ‘The Comparative Nature of Punishment’, Boston University Law Review 89 (2009), pp. 11661608.

3 See Berman, Mitchell, ‘Punishment and Justification’, Ethics 118 (2008), pp. 258–90, at 269.

4 This failure is disturbing only for hard-retributivists, who hold that retributive justice requires that wrongdoers get what they deserve, and not for soft-retributivists, who hold that such punishment is permissible but not necessary.

5 van den Haag, Ernest, ‘The Collapse of the Case against Capital Punishment’, National Review 31 (1978), pp. 395–7, at 397; cited by Nathanson, Stephen, ‘Does it Matter if the Death Penalty is Arbitrarily Administered?’, Philosophy & Public Affairs 14 (1985), pp. 149–64, at 151.

6 Miller, David, ‘Comparative and Noncomparative Desert’; Shelly Kagan, ‘Comparative Desert’; and Thomas Hurka, ‘Desert: Individualistic and Holistic’, all in Desert and Justice, ed. Olsaretti, chs. 1, 2 and 4, respectively.

7 Frankfurt, Harry, Necessity, Volition and Love (New York, 1999), p. 147 (‘Equality as such has no moral importance’); Westen, Peter, ‘The Empty Idea of Equality’, Harvard Law Review 95 (1982), pp. 537–96, at 542 (‘Equality, therefore, is an idea that should be banished from moral and legal discourse as an explanatory norm’); and Feldman, Fred, ‘Return to Twin Peaks: On the Intrinsic Moral Significance of Equality’, Desert and Justice, ed. Olsaretti, ch. 6.

8 Admittedly the story is not that simple. An undeserved punishment can still be just, even on retributive justice grounds alone. Consider for example the case where for some reason Adam can either serve eleven years in jail or be set free. Is it clear that serving eleven years in jail is less just, on retributive justice grounds, than not serving at all? We come back to this example later.

9 This example is less imaginary than one might think; there is actually a real case of a judge asking the defendant to toss a coin to determine his exact sentence within the legal range. See ‘In the Matter of the Proceeding Pursuant to Section 44, Subdivision 4, of the Judiciary Law in Relation to Alan I. Friess, a Judge of the Criminal Court of the City of New York, New York County, 1983 WL 189799’ (30 March 1983).

10 This is not to say that, in regular, non-emergency circumstances, the police should be allowed to stop just anyone and subject her to an extensive search. It is just that if some individual has a grievance for having been arrested, it would have to be based on the unjustifiability of the arrest, not on the fact that others were not arrested.

11 For references, see Sverdlik, Steven, ‘Motive and Rightness’, Ethics 106 (1996), pp. 327–49, sect. I.

12 Stocker, Michael, ‘Intentions and Act-Evaluations’, Journal of Philosophy 67 (1970), pp. 589602, at 602 (‘good and bad intentions are relevant for some, but not all act evaluations’); Stocker, Michael, ‘Act and Agent Evaluation’, Review of Metaphysics 27 (1973), pp. 4261, at 61 (‘it is patently mistaken to hold that there are no important conceptual connections between act evaluations and agent evaluations’).

13 Sverdlik, ‘Motive and Rightness’, p. 327 (‘motives do in fact sometimes affect the deontic status of an action’). Sverdlik has just published a full book on the topic entitled Motive and Rightness (Oxford, 2011).

14 Scanlon, Thomas, Moral Dimensions: Responsibility, Meaning, Blame (Cambridge, 2008), pp. 3788.

15 Sverdlik, ‘Motive and Rightness’, p. 341.

16 Sverdlik, ‘Motive and Rightness’, p. 341. (See also Scanlon, Moral Dimensions, pp. 69–74.) Sverdlik goes on to suggest that this view regarding the connection between motives and actions underlies the position of some proponents of the death penalty in the US who believe that even if all convicted murderers deserve to die, it would nevertheless be wrong to execute only black convicts (Sverdlik, ‘Motive and Rightness’, n. 31). Contrast this view with that of Van den Haag, ‘The Collapse of the Case against Capital Punishment’.

17 For a similar point, see Nathanson, ‘Does it Matter?’, p. 159.

18 Until recently, federal law mandated sentencing that was ten times higher for distributing crack-cocaine than for the pharmacological equivalent, powder cocaine. Many attribute this disparity in sentencing to subliminal racism, because crack-cocaine is predominantly used by blacks.

19 On the difference between a bias which reflects personal attachment to family members and a bias which reflects beliefs that some type of people are morally inferior to others, see Alexander, Larry, ‘What Makes Wrongful Discrimination Wrong?’, University of Pennsylvania Law Review 41 (1992–3), pp. 149219, at 160–1.

20 Nathanson, ‘Does it Matter?’, p. 158.

21 Nathanson, ‘Does it Matter?’, p. 158.

22 Furman v. Georgia 408 U.S. 238 (1972).

23 See the citations in Nathanson, ‘Does it Matter?’, pp. 151, 156 and 161.

24 Adam may complain to the state about the shortage of prison cells, which resulted in Eve getting a shorter jail time. While this may be a legitimate point, Adam does not have special standing to make this complaint in comparison to any other citizen.

25 See also Hurka, who argues that ‘the more abstract arbitrariness argument against the death penalty seems less powerful intuitively than the discrimination argument’, at p. 57. An open question remains about over-determination, e.g. when a judge imposes the death penalty because of legitimate motivation and because of an illegitimate motivation such as the victim's race, where either would suffice.

26 Holmes, Elisa, ‘Anti-Discrimination Rights Without Equality’, Modern Law Review 68 (2005), pp. 175–94.

27 Holmes, ‘Anti-Discrimination Rights’, p. 180.

28 Holmes, ‘Anti-Discrimination Rights’, p. 186.

29 Another concern about differential punishment relates to the desirability of maintaining the appearance of justice to the public. Significant disparities of punishment may undermine public belief in the ability of the court to implement justice, that is, to apply universal principles of punishment. For this reason, even if the public is wrong and courts were in fact perfect, one may still argue that there is an interest in harmonizing punishment by reducing disparities in sentencing. However, the appearance of justice, like deterrence and incapacitation, is an exogenous consideration that may or may not override retributive justice concerns.

30 See, for instance, Radin, Margaret, ‘Cruel Punishment and Respect for Persons: Super Due Process for Death’, South California Law Review 53 (1979–80), sect. II (‘Retributivism and Respect for Persons’).

31 Hurka, ‘Desert’, pp. 55–6.

32 For a similar point regarding anti-discrimination principles, see Holmes, ‘Anti-Discrimination Rights’, p. 186.

33 See also Feinberg, Joel, ‘Noncomparative Justice’, Philosophical Review 83 (1974), pp. 297338, at 301 (‘Purer cases of non-comparative injustice are encountered in retributive contexts . . . punishment of the innocent person would be unjust to him even if the guilty party were also punished, or suffered a fate even worse than punishment’).

34 Thanks to Adam Kolber for suggesting to us this argument against strict respectarianism.

35 Frankfurt, Necessity, Volition and Love, p. 149.

36 Rawls, John, A Theory of Justice (Cambridge, Mass., 1971), p. 48; Feinberg, Joel, ‘Noncomparative Justice’, Rights, Justice and the Bounds of Liberty (Princeton, 1980), pp. 265306; Scheffler, Samuel, ‘Justice and Desert in Liberal Theory’, California Law Review 88 (2000), pp. 965–90.

37 Hurka, ‘Desert’, pp. 61–2. See also Moriarty (‘Against the Asymmetry of Desert’, Nous 37 (2003), pp. 518–36), who argues that the asymmetric treatment of desert is unjustified.

38 Similar concerns arise about corrective justice too, but we cannot discuss them here. See Avraham, Ronen and Kohler-Housmann, Issa, ‘Accident Law for Egalitarians’, Legal Theory 12 (2006), pp. 181224.

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