NCJ Number
114998
Journal
Wayne Law Review Volume: 33 Issue: 4 Dated: (Summer 1987) Pages: 1423-1433
Date Published
1987
Length
11 pages
Annotation
This essay challenges the analysis of Ernest van den Haag, who argues in another essay that a punished individual cannot complain of injustice arising from the fact that the lawfully authorized punishment imposed is not invariably, regularly, or perhaps ever imposed on anyone else equally guilty of the given offense.
Abstract
Van den Haag argues that no injustice occurs to an individual offender who concedes guilt, the lawfulness of the punishment, and that some punishment occurs, regardless of how a similarly guilty offender is punished. However, sentencing equally guilty parties to different punishments should be based on rational factors that differentiate the cases in some relevant respect. Otherwise no reason exists for permitting differences in punitive outcomes. Every offender has a right to a sentence not determined by factors that are irrelevant to the desert. However, van den Haag rejects this reasoning and argues that the offender, in committing the crime, volunteered to assume the risk of receiving the worst possible punishment available to the sentencer. His reasoning protects sentencers who discriminate on a variety of grounds, provided that the discrimination is unintentional. However, he is unconvincing when he argues that a social practice cannot be unjust to anyone because it is not prohibited by law and is not consciously discriminatory. 14 footnotes.