Desert, Democracy, and Sentencing Reform

• NCJ Number: 216768
• Journal: The Journal of Criminal Law & Criminology Volume: 96 Issue: 4 Dated: Summer 2006 Pages: 1293-1352
• Author(s): Alice Ristroph
• Date Published: 2006
• Length: 60 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article critically evaluates the use of desert as a sentencing principle.

Abstract

The author proposes that external limitations, such as those imposed by a branch of government not itself responsible for exercising the power, will be the most effective means of placing restrictions on penal power. The main argument is that contrary to previous scholarly claims, the desert principle does not act as a limiting factor for the imposition of punishments but in fact operates in the opposite fashion to justify increasingly severe punishments. The principle of desert asserts that criminal punishments should be no more severe than what offenders deserve. Current advocates of this principle contend that desert operates as a limiting principle that sets the upper and lower limits of the range of punishments allowed in the pursuit of non-retributive criminal justice goals. The author analyzes this claim and argues that, on the contrary, desert operates more as an illimitable (unlimited) factor than a limiting factor. The author illustrates how desert is “elastic” in legal and political practice, which means that desert punishments remain difficult to define and are easily stretched to accommodate increasingly severe punishments. Evidence is presented that shows how increasingly severe punishments have been popularly justified and defended using the language of desert. The author further argues that desert punishments take on an “opaque” quality in which judgments of desert are influenced by extralegal considerations, such as racism. The extralegal factors impacting judgments of desert remain hidden (opaque), however, by the legal apparatuses that provide a moral authority to desert claims. Due to the opaqueness of their nature, judgments based on prejudice are shielded from meaningful scrutiny because of the moral authority provided by “just desert” claims. Footnotes