Vanderbilt Law Review

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The role of justice in assigning criminal liability and punishment has been a matter of long-standing debate. A standard argument against a desert distributive principle-that is, against distributing punishment according to an offender's blameworthiness- has been that such a concept of "desert" is simply too vague and the subject of too much disagreement to operationalize. There may be some truth to these complaints when applied to a philosophical notion of desert, which has been the traditional basis of the desert school.

But more recently, a utilitarian-based theory of desert has urged reliance on an empirical notion of desert, drawn from the community's shared intuitions of justice rather than from the reasoned concepts of moral philosophy. The same objections about vagueness and lack of agreement are lodged against this empirical notion of desert. People's intuitions of justice, it is claimed, are simply too vague to be relied on and, in any case, there is too much disagreement about what constitutes deserved punishment to construct a workable criminal justice system. It is the common wisdom that little agreement exists among people's intuitions of justice:

"[E]ven assuming retribution in distribution is appropriate, there is a classic epistemological problem. How do we know how much censure, or "deserved punishment," a particular wrongdoer absolutely deserves? God may know, but as countless sentencing exercises have shown, peoples' intuitions about individual cases vary widely.

There is ... reason to doubt that anything like a consensus exists on the seriousness of criminal conduct. While there may be some agreement on relative levels of harm, there appears to be great variation in perceptions of the absolute magnitude of harm represented by various criminal acts, and in either the relative or absolute level of culpability represented by various criminal actors."

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