Putting Desert in Its Place

Abstract

Based on an impressive array of studies, Paul Robinson and his coauthors have developed a new theory of criminal justice, which they call “empirical desert.” The theory asserts that, because people are more likely to be compliant with a legal regime that is perceived to be morally credible, a criminal justice system that tracks empirically derived lay views about how much punishment is deserved is the most efficient way of achieving utilitarian goals, or at least is as efficient at crime prevention as a system that focuses solely on deterrence and incapacitation. This Article describes seven original studies that test the most important hypotheses underlying empirical desert theory. The authors’ conclusions, which throw doubt on much of empirical desert theory, include the following: (1) while consensus on the ordinal ranking of traditional crimes is relatively strong, agreement about appropriate punishments — which arguably is the type of agreement empirical desert requires in order to work — is weak; (2) the relationship between people’s willingness to abide by the law and the law’s congruence with their beliefs about appropriate punishment is complex and not necessarily positive; further, any noncompliance that results from the law’s failure to reflect lay views about desert is probably no greater than the noncompliance triggered by a failure to follow lay views about the role utilitarian goals should play in fashioning criminal dispositions; (3) while the relative crime control benefits of a desert-based system and a prevention-based system are hard to evaluate (and are not directly examined here), people are willing to depart from desert in cases that do not involve the most serious crimes if they believe that preventive goals can be achieved in some other way. The Article ends by discussing the implications of these findings for criminal justice policy, especially with respect to determinate and indeterminate sentencing.