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This paper is published in the journal Law & Philosophy. The final publication is

available at Springer via http://dx.doi.org/10.1007/s10982-012-9147-0

Why retributivists should endorse leniency in

punishment

Göran Duus-Otterström

1. Introduction

Retributivism can be characterized as the theory which says that punishment is justified

if and to the extent that it is a morally deserved response to an instance of criminal

wrongdoing. Many epistemic problems mar the extent to which a jurisdiction can live up

to this theory in practice. In order to reliably establish retributive justice, we must not

only be able to say with reasonable confidence that a supposed offender deserves

punishment. We must also be able to say how much punishment a deserving offender

deserves. While epistemic problems cause doubts as to whether retributivism can be

successfully practiced on both counts, it is on the latter question – the question of

deserved quantity – that this paper focuses.1

1 Concerning the former we might be mistaken not only about whether a person has committed

the crime he is charged with, but also, perhaps for metaphysically deep reasons, about whether he

is the kind of actor that can be morally deserving. I have written on these questions and the

fallibility-type objections they generate in other papers. I treat the problem of mistaken identity in

“Fallibility and Retribution”, Law & Philosophy 29(3) (2010): pp. 337-369. I deal with the risk of

error in the basic attribution of desert in, “Betting against Hard Determinism”, Res Publica 14(3)

(2008): pp. 219-235, and “Betting against Compatibilism”, Res Publica 16(4) (2010): pp. 383-

396. In this paper, I shall assume that we know that offenders are deserving of a punishment.

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The question of deserved quantity presents a robust challenge to retributivism. The

retributive ideal of sentencing is that offenders should get the punishment they deserve,

no more and no less, but because judgments about which particular punishment an

offender deserves are fallible, that ideal seems very difficult to attain. In fact, given the

epistemic problems involved, desert-based sentencing is best thought of as decision-

making under uncertainty, where risks of either underpunishment or overpunishment

are significant. It is not self-evident which approach or method a retributivist should

employ when faced with these risks. In this paper I argue, perhaps surprisingly, that

retributivists should make sentencing decisions that guard more against overpunishment

than underpunishment. This amounts to the claim that, usually, retributivists should

endorse penal leniency. In choosing between different punishments for a crime under

uncertainty, they should in general prefer more lenient punishments over more severe

ones.

It should be stressed that the conception of penal leniency employed in this paper

does not concern how lenient punishments are in an absolute sense.2 It only involves

picking a punishment that is more lenient than others. The easiest way to illustrate this

2 It is sometimes assumed that retributivism is committed to punishments that are in an absolute

sense severe. This is a mistake, because retributivism will strictly speaking only be as severe as the

intuitions about desert of its advocates – there is nothing in the retributive theory itself which

rules out, say, that two weeks’ imprisonment is punishment enough for murder. This is not to

deny that the ascent of “just deserts” as a penal aim in Western jurisdictions has coincided with,

and might quite possibly have caused, the turn towards harsher sentencing policy. For this

argument, see David Garland, The Culture of Control (Oxford: OUP, 2001) and John Braithwaith

& Philip Pettit, Not Just Deserts (Oxford: OUP, 1990). For a different view, see Andrew von

Hirsch & Andrew Ashworth, Proportionate Sentencing – Exploring the Principles (Oxford: OUP,

2005), ch. 6.

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is by imagining (as is usually the case in real-world jurisdictions) that courts at the

sentencing stage have a range of punishments to choose from. It would be an instance of

penal leniency, as I use the term, to pick a punishment at the lower part of that range.

Before we get to the retributive argument for such leniency, we might first ask

whether penal leniency is desirable. It is natural to think that it is. Punishment, after all,

has considerable drawbacks: it wrecks lives and comes at enormous cost to society. It can

consequently be thought that any plausible theory of punishment must respect the

notion that, in general, less punishment is better.3 Retributivists tend to agree with this,

arguing that the value of achieving retributive justice must be balanced against other

worthwhile social aims, many of which recommend that punishment be used sparingly.4

Michael Moore, for example, maintains that even his particularly strong brand of legal

moralism admits that the pursuit of retributive justice will at times be tempered by other

concerns.5 According to this value pluralist line of argument, it is reasonable to tone

down the duty to establish retributive justice once the aim of giving offenders what they

deserve is put in relation to other aims competing for society’s limited resources.

3 On the drawbacks of punishment, see e.g. Douglas Husak, Overcriminalization (Oxford: OUP,

2008).

4 A sizeable literature on “parsimony” has persuasively shown along these lines that there can be

no perfect duty to punish the guilty. A nice summary from a retributivist standpoint is Richard

Lippke, “Retributive Parsimony”, Res Publica 15(4) (2009): pp. 377-398. Authors who use

competing aims to criticize retributivism include Douglas Husak, “Why Punish the Deserving?”,

Noûs 26(4) (1992): pp. 447-464 and Russ Shafer-Landau, “The Failure of Retributivism”,

Philosophical Studies 82(3) (1996): pp. 289-316.

5 Michael Moore, Placing Blame (Oxford: OUP, 1997), pp. 661-665. See also Husak,

Overcriminalization, pp. 200-206.

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Note that the value pluralist argument for leniency does not deny that

retributivism, qua theory of sentencing, is incompatible with leniency – it only says that

retributivists can defend leniency by positing additional values that legitimately

constrain the pursuit of retributive justice. This way of looking at it indeed seems right.

Taken in and of itself, retributivism says that if someone deserves a certain punishment,

then it would be good or just that he gets it, and bad or unjust if he does not. There is

nothing in this view that would lead us to regard leniency as a good thing – while the

value of establishing desert might in the final analysis be outweighed by competing

values, the failure to establish desert remains, in itself, something to regret. Seen that

way, the idea of retributivism endorsing leniency seems far-fetched.

In this paper, however, I argue that retributivism can and should endorse leniency,

and endorse it on the basis of reasons that seem internal to the moral universe of their

desert-based theory. That is, rather than rehashing the value pluralist arguments for

leniency (or “parsimony”) I argue that retributivists do not need to look further than

their own theory to mount a case for leniency in sentencing. In fact, since these reasons

are internal to their view, my claim is that retributivists are committed to leniency

whether they like it or not.

Why would retributivism be thought to provide internal reasons for leniency when

its basic claim is that offenders ought to get the punishments they deserve, no more and

no less? Because it follows from keeping separate the important (and often blurred)

distinction between what retributivism holds to be ideal and which approach to

sentencing it will subscribe to under uncertainty. It is true that if we knew that a

lawbreaker deserves X months of imprisonment, then, as far as retributivism is

concerned, he ideally ought to get X months. Yet this does not mean that retributivism

cannot justify leniency in cases where we do not know what an offender deserves. There

is a difference between what we objectively ought to do and what we ought to do given

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epistemic constraints – what Jackson and Smith refer to, respectively, as “objective-

oughts” and “decision-oughts”.6 My argument is that, given the uncertainty that is

generally involved in desert-based punishment, retributivists can and should (“decision-

ought”) endorse leniency in sentencing.

More specifically, this paper accepts for the sake of argument the typical

retributivist view that any given crime deserves a certain punishment. But it brings to the

fore that we are usually unsure about what that ideal punishment is – we can perhaps

specify a range of punishments that seems appropriate, either on absolute or relative

grounds, but we cannot confidently single out a particular punishment within that range.

Such uncertainty, I argue, should make the retributivist opt for a lesser punishment. The

reasoning for this conclusion is simple: the more lenient a punishment, the more likely

that parts of it are not undeserved; and since retributivists arguably should prefer that all

of a punishment is deserved to ensuring that the full amount is delivered, they should

choose a more lenient as opposed to a more severe punishment. We can liken it to

pouring water blindfolded into a glass of unknown size: the perfect result might well be

to get the water all the way up to the rim, but if we prefer a less-than-full glass, to water

spilling over the sides, we had better pour in less rather than more water. As we shall

see, because real-world jurisdictions routinely have to handle epistemic limitations in

their design and use of sentencing ranges, this argument has clear practical implications

for how the criminal justice system should operate.

The paper is structured as follows. In section 2, I specify what kinds of

retributivism my argument covers. I contend that my argument applies to any “desert-

retributivist” position, by which I mean a position that holds that there is, for any crime, 6 Frank Jackson & Michael Smith, “Absolutist Moral Theories and Uncertainty”, Journal of

Philosophy 103(6) (2006): pp. 267-283. See also Derek Parfit, Reasons and Persons (Oxford:

OUP, 1987), p. 25, and J.J. Thomson, Rights, Restitution, and Risk (Cambridge: CUP, 1986).

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a certain punishment that the offender deserves and, if punished, ideally ought to get.

Section 3 argues that there is typically robust uncertainty as to what the ideal

punishment is. Section 4 argues that while a desert-retributivist will regard both

underpunishment and overpunishment as bad, there is more reason to insure against

overpunishment than underpunishment. Hence, retributivists should be lenient in their

choice of punishments. Section 5 discusses objections to the argument. The concluding

section 6 discusses some practical implications.

2. Retributivism and desert

I have so far referred simply to “retributivism”, yet there are many and varied views that

are classified as retributivist and not all of them are covered by my argument. Instead,

my argument only applies to what we can refer to as desert-retributivism (DR). DR is the

set of all views that say that the deserving – and only the deserving – ought to be

punished as much as they deserve; views that say that punishment should be distributed

on the basis of desert.

To distribute something “on the basis of desert” is to treat agents according to the

facts about them in virtue of which certain treatment is made appropriate. It is to treat

them in accordance with a relevant desert base.7 Not all bases of desert recognized in the

7 For the concept of desert, see Joel Feinberg’s seminal paper “Justice and Personal Desert”,

reprinted in Louis Pojman & Owen McLeod (eds.) What Do We Deserve? (Oxford: OUP, 1999),

pp. 70-83, and Serena Olsaretti, “Introduction”, in Olsaretti (ed.) Desert and Justice (Oxford;

OUP, 2003), pp. 1-24. Desert is a backward-looking, agent-referential and morally significant

concept. To deserve something is, first and foremost, something one (usually) does on the basis of

occurrences in the past (but see David Schmidtz, Elements of Justice [Cambridge: CUP, 2006],

pp. 40-49). Second, those occurrences must somehow relate in the right way to the deserving

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literature point to something distinctively retributivist, however. According to an

institutional conception of desert, for example, an offender might simply be said to

“deserve” the punishment which the law has proscribed for a certain crime. However,

this conception is, not really a species of desert at all, but rather flows from the notion of

legality and the notion of “legitimate institutional expectations”.8 The distinctively

retributivist conception of desert is instead moral. Moral desert is pre-institutional in the

sense that it is not parasitic on the proper administration of institutions.9 On this

conception, even appropriate mala prohibita offenses, while clearly dependent on what a

jurisdiction has decided to proscribe, are deserving of punishment for a reason that is

not traceable to the proscription itself.10 The idea is simply that an offender through his

criminal wrongdoing can make himself morally deserving of a certain punishment. DR is

the set of all views that want to distribute punishment in a way that results in the

offender getting that sentence.

subject, e.g. by mentioning her actions or character. Third, for proper desert-based theories, the

subject’s deservingness counts as at least a pro tanto reason to give her the deserved treatment.

8 John Rawls, A Theory of Justice (Rev. ed. Oxford: OUP, 1999), p. 276.

9 Moral desert is also prejusticial: it is not merely shorthand for what people are owed as a matter

of justice, but can rather help us work out what justice requires. See Peter Vallentyne, “Brute Luck

Equality and Desert”, in Olsaretti (ed.) Desert and Justice (Oxford: OUP, 2003), pp. 169-186, and

Samuel Scheffler, “Justice and Desert in Liberal Theory” Columbia Law Review, 88(3) (2000):

pp. 965-90.

10 For example, driving on the wrong side of the road is morally deserving of punishment because

it endangers others, not simply because it is the authorized consequence of driving on the wrong

side of the road. Mala prohibita offenses pose difficulties for retributivism that I cannot do justice

here. See Husak, Overcriminalization, pp. 103-119

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Which views hold this? The most straightforward example is positive

retributivism.

Positive retributivism: offenders ought to get as much punishment as they deserve

because they deserve it.11

According to positive retributivism, offenders ought to get as much punishment as they

deserve because it is intrinsically good. Different versions of positive retributivism will

place different weight on the “ought” in this definition – some take it to constitute a

conclusive moral reason, others a pro tanto one – but they all agree that there is some

kind of intrinsic value in giving offenders as much punishment as they deserve.12

11 Positive retributivism is sometimes divided into a desert-based and a fairness-based camp,

where the former locates the justification of punishment in the infliction of appropriate suffering

and the latter in the removal of the unfair advantage appropriated by the criminal. Desert-based

retributivism is associated with Kant. See e.g. Immanuel Kant, The Metaphysics of Morals

(Cambridge: CUP, 1996). See also Moore, Placing Blame for a contemporary statement. Seminal

texts in the fairness-based tradition are Hebert Morris, “Persons and Punishment”, The Monist

52(4) (1968): pp. 475-501 and Richard Dagger, “Playing Fair with Punishment”, Ethics 103(3)

(1993): pp. 473-488. Both camps are desert-based in the sense that they seek to distribute

punishment on the basis of desert, although they explain desert in different ways (e.g. as a breach

of the moral law vs. an act of unfair free-riding).

12 This holds, to be more precise, for a type of retributivism which thinks that it is intrinsically

good that wrongdoers suffer punishment to the extent that they deserve. Mitchell Berman calls

such retributivism instrumentalist retributivism, which he distinguishes from non-

instrumentalist retributivism in his illuminating “Two Kinds of Retributivism”, in R.A. Duff and

Stuart Green (eds.) Philosophical Foundations of Criminal Law (Oxford: OUP, 2011), pp. 433-

457.

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Other views might defend desert-based punishment on more indirect grounds.13

Such views are also members of DR. However, since positive retributivism is what people

generally have in mind when they talk of “retributivism” it is perfectly fine to think about

my argument as applying only to this view.

Some prominent kinds of retributivism, however, are not members of DR, and

hence not addressed by my argument. In order to avoid confusion we should quickly

note the most important examples. One example is negative retributivism.

Negative retributivism: the innocent must never be punished.

Another example is modest retributivism.

Modest retributivism: lawbreakers should never get more punishment than they

deserve.

Negative and modest retributivism entail no duty to distribute punishment on the basis

of desert. Negative retributivism only uses desert to establish, in binary terms, whether

13 Generally, DR includes each view that holds that punishment, if it is inflicted, should be

distributed on the basis of desert. This includes views which disassociate punishment’s “general

justifying aim” from establishing desert, for one need not think that establishing desert is

intrinsically good to say that punishment should be distributed on the basis of desert (See H.L.A.

Hart, Punishment and Responsibility [2nd ed, Oxford: OUP, 2008], pp. 8-13). One might think,

for example, that punishment is justified because it promotes aggregate welfare and that

punishing in accordance with desert is an essential means to that aim. See e.g. James Rachels,

“Punishment and Desert”, in Hugh LaFollette (ed.) Ethics in Practice (2nd ed. Cambridge:

Blackwell, 2010), pp. 466-474.

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punishment is permissible. Modest retributivism only uses desert to establish an upper

cap on permissible punishment. As long as the negative requirements of desert are

respected, both views are compatible with assigning punishment with no further eye to

establishing desert.14 We can note, in passing, that defending leniency presents no

challenge for them, since they both say that we may punish lawbreakers less than they

deserve.

Most forms of retributivism will arguably count as members of DR. This much

follows from their steadfast commitment to proportionality in punishment. Saying that

punishment should be “proportionate” to the crime is already to acknowledge that a

crime can be punished too little (“underpunishment”) or too much (“overpunishment”).

To retributivists, proportionate punishments are simply punishments that are, from the

point of view of desert, just about right in terms of severity. Punishing proportionally is

therefore the same thing as establishing desert.15 As one of the chief advocates of desert-

based sentencing, Andrew von Hirsch, explains:

14 Some, however, will accept these negative requirements as side-constraints on their brand of

positive retributivism. See for example the moderate retributivism espoused by Larry Alexander,

Kimberly Kessler Ferzan & Stephen Morse, Crime and Culpability (Cambridge: CUP, 2009), pp.

7-10.

15 My use of the concept of proportionality makes no essential difference between proportionality

and commensurability: a “proportionate” punishment is the same thing as one which is, either in

absolute or relative terms, “commensurate” to the moral desert of the offender. Some associate

proportionality only with the idea that worse crimes should get stiffer punishments and take

commensurability to be the separate demand that a punishment match a crime in some absolute

sense. See Russ Shafer-Landau, “Retributivism and Desert”, Pacific Philosophical Quarterly

81(2) (2000): pp. 189-214, p. 202. This difference in usage should be noted.

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“What is distinctive to contemporary desert theory is that it moves notions

of proportionality […] to a central role in deciding sanctions. The primary

basis for deciding quanta in punishments, under this theory, is the principle

of proportionality or ‘commensurate deserts’, requiring the severity of the

penalty to be proportionate to the gravity of the defendant's criminal

conduct. […] When penalties are arrayed in severity according to the gravity

of offences, the disapprobation thereby conveyed will reflect the degree of

reprehensibleness of the conduct”.16

Thus, DR does not embrace just the negative thesis that punishments must not be clearly

disproportionate; it embraces the more demanding positive thesis that punishments

ought to be proportionate. We can illustrate this by drawing an analogy to Shelly Kagan’s

notion of desert as having a “peak”.17 When we talk about what amount of well-being a

person deserves, Kagan imagines that we can graph a function between well-being (on

the horizontal axis) and goodness from the point of view of desert (on the vertical axis)

where the peak of the function represents the well-being a particular person deserves to

enjoy. The goodness at this point of the graph is higher than any other point on the

graph. On both sides of the peak, goodness decreases with the distance from the peak,

meaning that it is less good if someone gets more or less than she deserves – and worse

the farther the distance (in either direction) from the peak. It is helpful to think of the

16 Andrew von Hirsch, “Proportionate Sentencing: A Desert Perspective”, in Andrew von Hirsch,

Andrew Ashworth & Julian Roberts (eds.) Principled Sentencing (3rd ed, Oxford: Hart Publishing,

2009), pp. 115-125, pp. 118-119.

17 Shelly Kagan, “Equality and Desert”, in Louis Pojman & Owen McLeod (eds.) What Do We

Deserve? (Oxford: OUP, 1999): pp. 298-314. See also Thomas Hurka, “The Common Structure of

Virtue and Desert”, Ethics 112(1) (2001): pp. 6-31.

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retributive conception of punishment in the same way; each crime has an ideally

proportional punishment, and to punish any less or more than that is to move away from

the “peak” and away from justification.

Note that, contrary to what one might think, the notion of there being an ideal

punishment for each crime does not depend on our employing an absolute as opposed to

relative conception of proportionality.18 An absolute conception of proportionality holds

that there is for each crime an intrinsically proportional punishment. A relative

conception merely holds that if crime X is deserving of twice the punishment as crime Y,

then X should be punished twice as hard as Y. Both the absolute and relative conceptions

are consistent with the idea that there is but one punishment which is ideally

proportionate to X. The only difference is that while the absolute conception will hold

that punishment to be intrinsically proportionate to X, the relative conception will hold

it to be proportionate relative to how the penal scale is anchored (and where these

anchors can be mere stipulations).19 The relative conception thus admits that crime X

could in principle be proportionately punished with varying severity. But this does not

speak against the notion of a single ideally proportionate punishment within an

anchored penal scheme. We can still describe that punishment as deserved and regard

overpunishment or underpunishment as departures from that “peak”.20

18 Antony Duff, Punishment, Communication, and Community (Oxford: OUP, 2001), p. 133. A

related way of putting the distinction is in terms of comparative and noncomparative desert. See

e.g. Olsaretti, “Introduction”.

19 For this point, see J. Angelo Corlett, “Making Sense of Retributivism”, Philosophy 76(1) (2001):

pp. 77-109, and Duff, Punishment, Communication, and Community, p. 133.

20 In both cases, however, it is clear that we are working with cardinal as opposed to merely

ordinal proportionality. In order to discuss this we must first clear up the terminology.

Penologists have an unfortunate tendency of using the concept of ordinality in a nonstandard

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It is the notion of a single ideally proportional punishment for a crime that renders

leniency problematic. Retributivists who deny this notion can defend leniency much

easier. Hestevold, for example, claims that desert is disjunctive, meaning that several

punishments, of different severity, can equally be said to give an offender what he

deserves. Hestevold consequently argues that, as long as we choose a punishment from

the range of equally deserved penalties, there is nothing in the injunction to establish

way, taking an “ordinal” ranking to include demands of spacing (see e.g. von Hirsch & Ashworth,

Proportionate Sentencing, pp. 137-43). Ordinal rankings, however, are usually understood as

establishing rank-order but not relative distance of items – the latter being precisely what is

added by a cardinal ranking. Hence, ordinal proportionality would be satisfied as long as the

worst crime is punished by the most severe punishment in the set of punishments; the second-

worst by the second-most severe punishment, etc. There are good reasons for retributivists to

reject at least in principle ordinal proportionality so understood. The distance in seriousness

between the worst and the second-worst crime might be much greater than the distance in

severity between the hardest and the second-hardest punishment. Conversely, the distance

between the hardest and the second-hardest punishment might be much greater than the distance

between the worst and the second-worst crime. In both cases it seems pretty plausible to say that

proportionality is violated - and we can say this without saying anything about the general

harshness of the set of punishments. For these reasons, DR should strive for cardinal

proportionality (although it need not tie cardinal proportionality to an absolute, noncomparative

understanding of what people deserve). Note, however, that my argument might well extend also

to those who settle for ordinal proportionality. As long as there is uncertainty as to which place in

the ordinal ranking of all crimes an individual crime occupies, as might well be the case when

mens rea-related factors make it unclear what type of crime we are dealing with, my argument

might recommend leniency here too.

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desert that rules out exercising mercy by choosing a less severe penalty.21 Another

example is the theory of limiting retributivism associated with Norval Morris. Limiting

retributivism only uses desert to establish a range of not-undeserved punishments

within which other guiding principles for sentencing, such as Morris’s “principle of

parsimony”, can operate.22

Given surface similarities, it is important to underline how my argument differs

from disjunctive or limiting views. In comparison to them, I develop an argument for

leniency from a standpoint which is less hospitable to leniency and more faithful to

retributivism: that there is but one deserved punishment for each crime, and that this

punishment is what, as far as retributivism is concerned, an offender ideally ought to get.

Thus, unlike the disjunctive approach, my argument retains the idea of desert having a

non-disjunctive peak; and unlike the limiting approach, it assumes that punishment

should be proportional, not merely not disproportional. So although the notion of penal

ranges will eventually play a role in my argument too, it should be stressed these are not

like Hestevold’s disjunctive or Morris’s not-undeserved ranges, nor are they motivated

by the same concerns.

My claim is that even retributivists subscribing to DR should endorse leniency for

reasons that are internal to their view. That is, such retributivists need not turn to

external reasons such as the value of mercy or a concern for prudent public spending. My

basis for that claim centers on uncertainty: it is when sentencing involves decision-

making under uncertainty that desert-based punishment should be coupled with

leniency. The key reason for this, as we shall see, is that they ought to take an

asymmetrical attitude to over- and underpunishment. I lay out the reasons for the 21 H.S. Hestevold, “Disjunctive Desert”, American Philosophical Quarterly 20(3) (1983): pp. 357-

363.

22 Norval Morris, The Future of Imprisonment (Chicago: University of Chicago Press, 1974).

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asymmetrical attitude in section 4. First, however, we should say something about

uncertainty.

3. Epistemic Uncertainty and Sentencing

Retributivism, whether it subscribes to proportionality of a relative or absolute stripe,

will hold that each crime has an ideally proportional punishment. If we knew what those

punishments were, there would be no place in retributivism, qua theory of sentencing,

for leniency. Reasonably, however, we are often unsure about what punishment an

offender deserves. Such uncertainty can broadly take two different forms. We might be

confident that the proportional punishment is to be found within a certain set of

punishments, but be unsure as to which particular punishment within this set would be

ideal. Alternatively, we might believe that a criminal deserves a particular punishment,

but have doubts as to whether we are correct. The argument for leniency applies in both

these circumstances.23

It is easy to see why judgments of proportional punishments are highly unreliable.

To ensure proportionality in punishment, we must first assess and rank crimes in terms

of their seriousness. We must then assess and rank punishments in terms of their

severity. Finally, we must supply a function that allows us to match crimes and

punishments in a proportionate way. It can hardly be denied that each of these steps

presents profound epistemic difficulties. But the first step – ranking crimes in terms of 23 Furthermore, the sources of uncertainty can be of different sorts. An anonymous reviewer

suggests distinguishing between empirical and moral uncertainty, where empirical uncertainty

means that we are unsure about the facts that pertain to an offender’s desert (e.g., his mental

state at the time of the crime) and moral uncertainty that we are unsure about the proper

punishment even if we knew all the empirical facts.

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their seriousness – arguably presents the greatest difficulty of all.24 Criminal seriousness

is usually taken to be a function of the harm, or risk of harm, imposed by the offender,

and the culpability of his doing so. Thus, in order to rank crimes in terms of their

seriousness, “we must […] identify and rank criminal harms, identify and rank kinds of

criminal culpability, and then combine these two rankings into a single scale of criminal

seriousness”.25 Clearly, there is considerable room for error here. Some would even take

the difficulties in ranking criminal seriousness to be so great that retributivism is not a

practicable penal aim.26

But that ranking is difficult need not mean that sentencing must be fully arbitrary.

If nothing else we can surely reason our way to rough penal ranges that are appropriate

for different types of crime. This is precisely the method real-world jurisdictions tend to

use. In order to ensure reasonable consistency in sentencing, while at the same time

24 Ranking punishments in terms of severity seems easier since the standard forms of punishment

(fines, imprisonment, probation, and community service) appear easily scalable. Even so, we

must also work out how these scales interrelate. How large must a fine be, for instance, before it

becomes more severe a punishment than two months imprisonment? See e.g. Duff, Punishment,

Communication, and Community, pp. 136-137.

25 Duff, Punishment, Communication, and Community, p. 135. Studies have found that people

can agree to a significant extent when it comes to ordinal-ranking crimes in terms of seriousness.

See Alexander, Kessler Ferzan & Morse, Crime and Culpability, p. 277.

26 Some because they question whether a ranking in terms of criminal seriousness is even in

principle achievable (see Shafer-Landau, “Retributivism and Desert”, p. 203); others because they

question whether there are reliable ways of finding out what they are. Since this paper is not a

defense of DR, I offer no fleshed-out explanation of why these skeptics are wrong. My argument

requires, however, that we accept that it is difficult but not impossible. The applicability of the

argument is undermined just as much by proportional punishment being too difficult as by its

being not difficult at all.

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allowing for flexibility to the individual case, they use sentencing ranges that specify the

punishments that are available to the law for different crimes. Officials of the criminal

justice system are (save for exceptional circumstances) expected to keep their

punishment within that range, but they are free to decide which particular type and

amount of punishment to mete out, taking into account relevant aggravating and

mitigating factors. One of the more famous – and controversial – examples of such

ranges is the United States Federal Sentencing Guidelines, which set out a uniform

sentencing policy for felonies and serious misdemeanors in US federal courts.27

Some kind of range-based approach is probably the best option for a jurisdiction

that aspires to punish on the basis of desert. Unfettered sentencing discretion is likely to

produce skew and inconsistency, whereas fully structured sentencing is likely to result in

mechanistic sentencing that is not attentive enough to the details of the individual case.

But ranges, no matter how good, can clearly only mitigate the problem of uncertainty.

Even if the sentencing range for a type of crime was correctly determined (capturing the

set of punishments that are proportionate to the variations of that crime) epistemic

difficulties obviously remain in deciding with any degree of confidence which

punishment within this range a particular criminal deserves, taking into account the

various mitigating and aggravating factors that pertain to his case. Premeditation,

27 The Guidelines take “offence level” (a measure of criminal seriousness) and criminal history

into account and then supply the courts with a sentencing range. The Guidelines can be found in

their current form at the webpage of the US Sentencing Commission (http://www.ussc.gov). See

David Dolinko, “Justice in the Age of Sentencing Guidelines”, Ethics 110(3) (2000): pp. 563-585,

for a good principled discussion. Other prevalent ways of structuring sentencing are mandatory

and mandatory minimum sentences. See Andrew Ashworth, “Techniques for Reducing

Sentencing Disparity”, in von Hirsch, Ashworth & Roberts (eds.) Principled Sentencing (3rd ed,

Oxford: Hart Publishing, 2009), pp. 243-57, for an excellent overview.

18

callous indifference, or abuse of rank or position might for example speak in favor of a

more severe punishment; while attempts to undo the harmful effects of the crime, a

rotten social background, or substance abuse might speak in favor of a more lenient one.

It is hard to imagine exact and consistent approaches to handling such questions. Yet

courts must get them right in order to establish desert.

The aim of punishing on the basis of desert makes the criminal trial a quest for a

particular kind of knowledge, attempting to establish not only whether the defendant is

guilty of the crime he is accused of (a problem I do not deal with here) but also which

punishment would be appropriate if he is indeed guilty.28 It cannot be denied that

considerable uncertainties mar this quest, and that a determinate sentence therefore

usually, if not invariably, risks departing from the desert peak that retributivism ideally

would like to reach. I take it that this point is so uncontroversial that I can more or less

assume it without further argument.

4. Why retributivists should endorse leniency in punishment

28 Portraying the sentencing part of a trial as an epistemic undertaking might put some readers off

as it suggests that there are facts out there about desert and proportionality that the court can

come to know. It is also possible, however, to think of it as penal anthropology: that the

sentencing should reflect the moral judgments of society as laid down in the guidelines. See

Dolinko, “Justice in the Age of Sentencing Guidelines”, p. 581. Others prefer to lay the emphasis

on the communicative aspects of the trial, see Antony Duff, Lindsay Farmer, Sandra Marshall &

Victor Tadros, The Trial on Trial (volume III): Towards a Normative Theory of the Criminal

Trial (Portland: Hart Publishing, 2007). Such an emphasis, however, does not deny that a trial

has epistemic aspirations.

19

When epistemic difficulties constrain efforts to give offenders what they deserves, there

seems to be a way of arguing that more lenient punishments should be preferred over

more severe ones. The argument consists of three premises. The first premise is what we

can call the Desert premise. It applies to the family of views denoted as DR.

(1) Desert: an offender ought to get the punishment he deserves.

It follows from this premise that overpunishment and underpunishment are bad.

Whether they are equally bad, however, is debatable. On a symmetry view,

underpunishment and overpunishment are equally bad if they are at equal distance from

the ideal punishment. On an asymmetry view, they are not.29 I will shortly argue for the

asymmetrical view which says that underpunishment is better than overpunishment.

The second premise adds the uncontroversial observation of the previous section:

even if there is such a thing as an ideally deserved punishment, we are often unsure as to

what that punishment is. We might be able to establish an appropriate sentencing range,

but be unable to say which punishment in that range the offender deserves. Call this

premise Uncertainty.

(2) Uncertainty: usually we are unsure about exactly which punishment the offender

deserves.

From this premise it follows that, in choosing punishment, we must take seriously that

we are not selecting the ideal one. Given that the sentencing range is correctly set we can 29 Suppose crime X deserves punishment Y. A symmetrical view would say that underpunishing

by Y-K is equally bad as overpunishing by Y+K; an asymmetrical view would not.

20

also say that, other things being equal, the more lenient the punishment, the more likely

that it is too lenient; and the harsher the punishment, the more likely that it is too

severe. If overpunishment and underpunishment are equally bad, as per the symmetry

view, this seems to support that retributivists choose punishments in the middle of the

range or simply take a punt. This would not lend itself to a defense of leniency. But the

symmetry view is probably wrong. We should care more about undeserved suffering

than about the guilty not being punished enough. We should take an attitude of

Asymmetry:

(3) Asymmetry: the offender not being subjected to an undeserved amount of

punishment is more morally important than the offender not fully receiving what

he deserves.

A desert-based morality of punishment works with a simple pair of concepts: desert and

suffering (or deprivation). It is distinctive in holding that deserved suffering is just or

good and that overpunishment and underpunishment are both cause for concern.30

Asymmetry, however, says that overpunishment is morally worse than

underpunishment. What are the reasons to accept this?

In discussing this question, it is helpful to bear in mind that punishments are

cumulative: any person who deserves a greater punishment will deserve the full amount

of any lesser punishment. To illustrate, suppose that Bob deserves to be imprisoned for

three years. If Bob is underpunished by one year, he still deserves the two years he does

30 As before, we could defend this on either an intrinsic or instrumental understanding of why a

desert-based distribution is morally justified. Clearly, the most common approach is to defend it

on intrinsic grounds, and the discussion will therefore assume that we are dealing with positive

retributivism.

21

spend in prison. No part of his treatment is undeserved. If Bob is overpunished by one

year, however, he does get what he deserves in full, but he also suffers an extra year in

prison. That part of his treatment is undeserved. When we compare underpunishment to

overpunishment, the question is simply whether undeserved excess in punishment is

better, worse, or as bad as undeserved deficiency in punishment.

I argue that undeserved excess is worse than undeserved leniency. At the core of

my argument lies a forceful intuition about value: suffering, which is what punishment

trades in, is in general bad. Retributivists, of course, think that suffering is not always

bad. But they can only maintain this up to the point where suffering ceases to be

deserved; they must agree with every other morally reasonable person that any suffering

beyond what is deserved is problematic, because such suffering is not only undeserved,

but in itself bad. Compare this to a case where it is merely true that someone is not made

to suffer enough. The deficiency in suffering in this case is undeserved and hence also

troubling to the retributivist. But it is a kind of undeserved treatment which leads to less,

not more, suffering. Given that retributivists can and should agree that suffering is

generally bad, it therefore seems reasonable to hold that undeserved treatment which

brings about excessive suffering is worse than undeserved treatment which brings about

deficiency in suffering. Applied to the case of the aforementioned Bob this means that

the outcome where Bob is underpunished by one year is better than the one where he is

overpunished by one year, for in the former outcome Bob deserves all that he in fact

suffers.

The claim underlying Asymmetry is simply that the disvalue of undeserved

suffering is, other things being equal, greater than the value of deserved suffering. I find

this claim compelling. Suppose we could choose between imposing on someone an

amount of suffering that is deserved and not imposing on someone else a similar amount

of suffering which is undeserved. It seems to me clear that the latter is what we should

22

normally choose. To my mind, this is something that retributivists can and should accept

as internal to their theory.

Can we lend more support to Asymmetry? One natural thought would be to draw a

parallel to the hugely influential presumption of innocence, which requires that guilt be

proven beyond any reasonable doubt. This parallel is far from self-evident, as

Asymmetry only talks about punishment of people who are deserving of punishment.

But here is how one could attempt to draw it: If we regarded overpunishment and

underpunishment in a symmetrical way, we arguably would not employ the presumption

of innocence. We would rather try to maximize the amount of deserved treatment, and

this should arguably lead us to employ a less stringent burden on proof which would

allow us to punish more guilty people. Yet most prefer to err on the side of protecting the

innocent (not least retributivists, who have always argued that punishing the innocent is

seriously wrong or bad). Why? Well, perhaps precisely because wrongful conviction

produces undeserved excess of suffering whereas wrongful acquittal merely leads to

undeserved deficiency. If this parallel is correct, it would lend Asymmetry considerable

intuitive support because we could then say that the reasoning that underpins

Asymmetry is the same reasoning that underpins the presumption of innocence. We

could even say to a reluctant retributivist that she is committed to Asymmetry by virtue

of subscribing to the presumption.

It is not clear that the parallel between the presumption of innocence and an

asymmetrical attitude to punishment is correct. It could be argued that the presumption

is only employed to guard against cases of mistaken identity and that it thus has nothing

to say about overpunishing people who have been found guilty beyond any reasonable

doubt. Patrick Tomlin has recently argued, however, that if the main motivation of the

presumption is to guard against imposing inappropriate hardships on people, then it

indeed seems to have wider implications than just to guard against wrongful conviction.

23

It would also seem to entail that lawmakers should prove beyond any reasonable doubt

that criminalized behavior is appropriately criminalized, and that judges should prove

beyond any reasonable doubt that guilty offenders deserve more punishment. For in

these cases too, Tomlin argues, punishment may be distributed where no (extra)

punishment is due.31

Drawing such an analogy between overpunishment of the guilty and punishment of

the innocent prompts some uncomfortable questions. Suppose guilty Bob is

overpunished by one year and wholly innocent Clare is imprisoned for one year. In both

cases, it seems, we are dealing with a same-sized instance of “overpunishment”. Are we

then to say that Bob’s suffering during his extra year is essentially like Clare’s? On

Tomlin’s view, the answer is yes, for in both cases we are dealing with inappropriately

imposed hardship. Overpunishing a guilty offender therefore “seems to be the same kind

of wrong as that of punishing someone for something they did not do”. 32 We can now see

that supporting Asymmetry by drawing a parallel to the presumption of innocence

comes at the price of no longer being able to make a sharp distinction between punishing

the innocent and overpunishing the guilty. The retributivist admittedly does have a few

options if she wishes to uphold the distinction. She could regard punishment of the

innocent as far worse than overpunishment of the guilty.33 Bearing in mind the

cumulative nature of deserved punishment, she could also point out that Bob and Clare’s

cases are relevantly different in terms of desert, for while Bob’s treatment is partly

undeserved, there is also a good chunk of it which is deserved (and hence good or just),

31 Tomlin, “Extending the Golden Thread? Criminalisation and the Presumption of Innocence”,

The Journal of Political Philosophy (early view).

32 Tomlin, “Extending the Golden Thread?”, p. 21.

33 In Tomlin’s terminology, this would be tantamount to an “outweighing” approach. Tomlin,

“Extending the Golden Thread?”, pp. 7-8.

24

and the same is not true for Clare. Thus, when their treatment is conceived of as wholes,

clearly Clare’s treatment is less good in terms of desert than Bob’s. Yet we may

nevertheless wonder which is worse: overpunishing Bob by 10 years or mistakenly

punishing Clare with one year? At this point, the retributivist might or might not prefer

to assert negative retributivism on top of her more positive commitments. If she does

assert it, the parallel between Asymmetry and the presumption of innocence is blocked,

and she will take Asymmetry to be speaking only about people who are in fact deserving

of punishment.34

From Desert, Uncertainty, and Asymmetry we can draw the following conclusion:

(C) When we are unsure as to what an offender deserves, we should punish more

leniently, as doing so increases the probability that the punishment is fully

deserved.

The logic should be easy enough to understand. The likelihood that punishments are

deserved in full goes up the less severe punishments are, and we should prefer fully

deserved punishments over ones that produce undeserved “spill-over”.

How often does this argument apply to retributivists? It does not apply when we

know which punishment an offender deserves. It might not apply in cases when we are

very confident but not certain either (although the remaining uncertainty speaks in favor

of leniency here too). However, since it is plausible that the uncertainty that reigns in

desert-based sentencing is often greater than a few niggling doubts, I think it is fair to

34 I have elsewhere questioned negative retributivism. See my “Fallibility and Retribution”. See

also George Schedler, “Retributivism and Fallible Systems of Punishment”, Criminal Justice

Ethics 30(3) (2011): pp. 240-266.

25

say that the argument is usually in play. When choosing between punishments,

retributivists should usually choose more lenient ones.

Saying that retributivists should choose “more lenient punishments” is obviously

not very precise. How lenient should they be? Having merely sought to provide a general

argument for leniency, I have purposefully kept the argument vague on this point. To

foreshadow the discussion below, the crucial matter is whether any amount of

overpunishment is always worse than any amount of underpunishment. If it is always

worse, we have an argument for radical leniency. If it is not always worse, we will merely

have an argument for leniency. This will become clearer as I now turn to fleshing out the

argument in light of a set of objections.

5. Objections

The crucial step in the argument is clearly Asymmetry. A first objection takes issue with

this premise. It could be asked why we should guard against overpunishment when we

are dealing with people who have, after all, culpably broken the law. Should we really say

that giving the lawbreakers more than they deserve means that we are committing a

significant injustice? Should we not rather guard against underpunishing them? This

objection thus takes an asymmetrical view to over- and underpunishment but says that

the asymmetry should actually go the other way – it is worse to punish the guilty too

little than it is to punish them too much.35 35 One way of making this idea explicit is Kagan's concept of “bell motion”, “Equality and Desert”,

p. 301. Recall that Kagan envisions that we can graph a desert function in a space where the Y-

axis represents the goodness of the outcome and the X-axis the amount of wellbeing an agent

experiences. When the agent has exactly as much wellbeing as she deserves the graph peaks, and

to the left and right of the peak the graph slopes down. But, Kagan notes, perhaps we want to

adjust the drop-off rate depending on what type of agent we are dealing with. For bad eggs,

26

The pull of this objection comes from considering especially heinous crimes.

People who commit such crimes deserve a stiff punishment, and we might think that it is

more important to ensure that they get enough than it is to guard against their being

punished too harshly. However, heinous crimes pump our intuitions in a misleading

way. Every jurisdiction has an upper cap to punishment; there is a legally sanctioned

most severe punishment. When we are dealing with especially heinous crimes the

criminals might deserve everything the law can throw at them – deserve more, in fact,

than what the jurisdiction can mete out.36 Since the risk of overpunishment is simply not

present in such cases, it is not mysterious if the risk of underpunishment seems more

worrying. Most crimes, however, do not pump our intuitions in the same way: we can

clearly overpunish robbers, drug offenders, reckless drivers, and so on. So my argument

would at least seem to apply to most crimes. 37

A second objection is that if we accept the asymmetrical view I have espoused, then

it seems that we cannot punish criminals leniently enough. Does not the imperative to perhaps the slope to the right of the peak is steeper. For nice people, perhaps the slope to the left

of the peak is steeper. The simple idea is that, for bad eggs, the outcome quicker becomes worse

the more wellbeing than deserved they have, whereas for nice people, the outcome quicker

becomes worse the less wellbeing than deserved they have. This line of reasoning leads to an

interesting difference between punishment and reward. If a nice person is due a reward, perhaps

we should prefer over-rewarding to under-rewarding her. Under uncertainty, this would mean

that we should choose greater as opposed to smaller rewards.

36 Cf. Jeffrey Reiman, “Justice, Civilization, and the Death Penalty: Answering van den Haag”

Philosophy & Public Affairs 14(2) (1985): pp. 115–48.

37 However, the situation would be different if a jurisdiction metes out punishments that in

general are in an absolute sense objectionably lenient. Since the most severe available

punishment is likely to be too lenient, the retributivist would have no reason to employ penal

leniency.

27

ensure that punishment is fully deserved propel us to the absurd conclusion that we

should punish every crime with the most lenient punishment available, thus minimizing

the risk of overpunishment?

This objection overlooks the possibility of our being able to determine with a fair

bit of certainty the range in which the ideal punishment is to be found. It is worth noting

that even theorists who are skeptical about the possibility of punishing proportionally

tend to agree that there are clearly disproportional punishments.38 We all agree, for

example, that a fine is too lenient a punishment for murder and that imprisonment for

10 years is too severe a punishment for shoplifting. Our intuitions, whether of absolute

or relative origin, seem to offer some guidance as to what punishments are

proportionate. If this is so, perhaps we could reason our way to at least a rough penal

range in which a proportional punishment can be found, much like how real-world

jurisdictions seek to structure sentencing by supplying penal ranges. Hence, while my

argument does seem to imply that the retributivist should pick the most lenient of

punishments within an appropriate sentencing range, it does not imply that she should

pick the most lenient punishment in the penal code. The concept of an appropriate

sentencing range puts a stop to the race toward the most lenient punishment in the set of

all punishments.

This might still not be enough to quell the worry that the argument starts a race

towards the bottom which is hard to stop. After all, there might be enough uncertainty

about the appropriate bounds of sentencing ranges that we end up with extraordinarily

large ranges. An objector might say that ruling out the risk of overpunishment would

require us to punish extremely leniently, and the resulting scheme of punishment would

hardly resemble retributivism at all. Retributivism, after all, enjoins us to establish 38 See Shafer-Landau, “Retributivism and Desert”, pp. 191-92; Husak, Overcriminalization, pp.

14-15.

28

desert – and in a scheme geared towards leniency there will presumably be copious

amounts of underpunishment. It would thus not appear to be the scheme which is best

from the point of view of desert.39

I have two things to say about that objection. On the one hand, I believe the

concern that ranges will be extraordinarily large is overstated. I suspect – but cannot

justify here - that we could reason our way to at least somewhat precise ranges, in

particular once a penal scale is anchored. That these ranges might remain uncomfortably

large is something, on my argument, we would just have to accept. On the other hand,

regarding the notion that a lenient scheme might not be best from the point of view of

desert, this clearly depends on the way overpunishment and underpunishment are

weighted. I will have more to say about this in a moment, but if we grant sufficiently

greater weight to the disvalue of overpunishment, a scheme of lenient punishment

simply is the best option from the point of view of desert. The closer we move towards

symmetry, however, the less sense leniency will make.40

39 In particular, it would not meet the demands of symmetrical views such as the one Larry

Alexander calls strong retributivism, see his “Retributivism and the Inadvertent Punishment of

the Innocent”, Law & Philosophy 2(2) (1983): pp. 233-246.

40 One source of confusion might be that it is assumed that Asymmetry works as a Nozickian side-

constraint, i.e. that the pursuit of desert comes with an absolute rule against overpunishment

much like it comes with an absolute rule against knowingly punishing the innocent (Robert

Nozick Anarchy, State and Utopia [New York: Basic Books, 1974]).This is not how we should

interpret Asymmetry. We should understand it as starting out from the disvalues that

overpunishment and underpunishment cause, and all the action happens around how these are

weighted. Compare Moore’s discussion in Placing Blame, p. 157. I am thankful to an anonymous

reviewer for inviting me to elaborate on this point.

29

The width of ranges aside, suppose the objection is solely that the logic of the

argument propels us consistently to choose the most lenient punishment in an

appropriate sentencing range. If the legally sanctioned sentencing range for crime X

spans from three to 36 months in prison, my argument seems to say that each X should

be punished by three months. Is this absurd? We cannot answer that question in the

abstract, but two general observations can be made. First, if the notion of three months

for each X is absurd, it may be that the range is too wide and needs to be tightened. Our

intuition that three months is preposterous might simply reveal that we do not agree

with the lower end-point of the range. Second, the argument I have developed only

applies where there is uncertainty as to whether a lawbreaker deserves a lesser or a

harsher punishment. Such uncertainty need not be wide: we might be confident that a

lawbreaker deserves more than three months, perhaps because there are a number of

aggravating factors associated with his particular case of X-ing. If so, we can effectively

cut off a section of the sentencing range. My argument for leniency, however, still applies

to the portion of the range we are left with.

It should also be stressed that the argument presents a desert-based reason for

leniency. If we allow other factors to influence sentencing it need not be taken as the only

guiding principle. So if we believe that it would be a bad idea consistently to give

offenders the least severe punishment in the applicable sentencing range, we might

tacitly (and not unreasonably) grant weight to other considerations, such as the need for

general deterrence. But this is beside the point. My aim is simply to show that even

retributivism has reason to endorse generalized leniency. Whether or not this reason

might be trumped or outweighed by countervailing reasons is not something I address.

We still need to discuss, however, the strength of the argument in terms of

leniency. As the argument has been presented, the asymmetry premise seems to suggest

that any amount of overpunishment is always worse than any amount of

30

underpunishment. To illustrate, suppose that Bob deserves 24 months in prison. Now

compare two scenarios. In the first scenario, the court follows the injunction to ensure

against overpunishment and sentences Bob to 3 months. In the second, Bob is sentenced

to 25 months. Should we really say, as my argument seems to say, that the latter

situation is in a desert-based sense worse than the former? Is underpunishing Bob by 21

months not a greater failure to establish retributive justice than overpunishing him by

one month?

This objection puts the finger on something correct. However, we should be clear

about what kind of argument I have laid out. The argument tries to show that, under

uncertainty, retributivists should employ leniency. Hence, it is an argument for a

particular mode of decision-making. Even if it would be worse to underpunish Bob by a

wide margin than it would be to overpunish him marginally, the knowledge that Bob

deserves much more than he receives in the first scenario (where he gets three months)

is precisely the kind of knowledge the court does not have. So it could still be argued that

choosing the most lenient punishment is defensible along the lines offered by my

argument.

This response is a bit too simple, however, because which decisions make sense

clearly depend on how different outcomes are valued. If any amount of overpunishment

is always worse than any amount of underpunishment, then retributivists should indeed

endorse the radical kind of leniency I have described above, i.e. they should always

choose the most lenient punishment available within an appropriate range. This is so

because, on this view, the part of the punishment which is undeserved adds no desert-

value at all, but is rather immediately bad from the point of view of desert – at the point

to the right of the deserved peak, we might say, the graph drops off in a vertical line.41 41 This valuation seems to me the implication of saying that overpunishment of a guilty person is

essentially like punishment of an innocent.

31

But it seems absurd to say that any amount of overpunishment is always worse. If we

want to escape that valuation, but still want to hang on to the idea that underpunishment

in general is better than overpunishment, we should turn to some more modest form of

asymmetry. We might simply accept Thomas Hurka’s view that “it is worse in desert

terms if a person receives a fixed amount more punishment than is optimal than if he

receives the same amount less”.42 That such a view recommends leniency under

uncertainty is clear; it holds that overpunishment becomes less good in terms of desert

more quickly than underpunishment (and, if it can be bad in terms of desert, becomes

bad more quickly). However, how strong a leniency it will recommend depends on the

difference in badness between underpunishing and overpunishing by a fixed amount. If

overpunishment is much worse, as seems intuitively right to me, then we should choose

punishment towards the more lenient end of the range. If it is worse but not much worse,

then we should choose more to the middle. As long as we endorse any kind of asymmetry

which regards overpunishment as generally worse than underpunishment, however, we

have a reason, in the choice between punishments, to choose a more lenient one. And

this is all my argument is really setting out to prove.

6. Conclusions

I have argued that retributivism presents an internal reason to endorse leniency under

conditions of uncertainty. The simple idea is that, when in doubt, the retributivist should

choose a lenient punishment, as doing so increases the chance that the treatment

produces no undeserved suffering. Whether she should choose the most lenient

42 Hurka, “Desert: Individualistic and Holistic”, in Olsaretti (ed.) Desert and Justice (Oxford:

OUP, 2003), pp. 45-68, p. 56.

32

punishment or merely a more lenient one depends on how radical a version of

Asymmetry she accepts.

This argument, it seems to me, offers a retributive defense of one kind of leniency

(choosing lesser as opposed to more severe punishments). It is worth mentioning that

there are other senses of leniency for which the argument has offered no defense. For

example, it cannot justify knowingly meting out less punishment than is deserved. If this

is the true sense of leniency, I have offered the retributivist no reason to endorse

leniency at all.43

What are the practical implications of my argument? One obvious implication is

the need to be careful in the design of sentencing ranges, paying great attention to how

their end-points are set. Having become disenchanted by indeterminate sentencing,

jurisdictions already pour a lot of attention into such guidelines. Guidelines can assist in

desert-based sentencing if they are well-designed, but it is at best unclear whether in

practice they are germane to that end.44 Another obvious implication is the desirability of

becoming more accurate in judging criminal seriousness. As any attempt to establish

desert must pay attention to a significant number of aggravating and mitigating

circumstances, however, I do not think that we should hold our breaths here. A fair –

perhaps even fatal – bit of uncertainty seems endemic to the whole idea of punishing on

the basis of moral desert. Given this uncertainty, the most significant implication of my

43 That is, I have offered no defense of what might be referred to as mercy. See Martha Nussbaum,

“Equity and Mercy”, Philosophy & Public Affairs 22(2) (1993): pp. 83-125. See also, generally, Leo

Zaibert, “The Paradox of Forgiveness”, Journal of Moral Philosophy 6(3) (2009): pp. 365-393.

44 See Dolinko, “Justice in the Age of Sentencing Guidelines”. Many guidelines, such as the United

States Federal Sentencing Guidelines, for example take criminal history to be relevant, and it is at

least debatable whether an offender deserves more punishment for a crime just because he has

prior convictions.

33

argument is perhaps that jurisdictions should employ generalized leniency. One way this

could work in practice would be to start the sentencing part of a criminal trial at the most

lenient point of the applicable sentencing range. The court then asks: is it certain enough

that the defendant deserves more than this punishment? In answering that question, the

burden of proof would rest with arguing that the defendant should indeed get more.

Contrary to what may seem most natural, such an approach would not place the default

punishment in the middle of a range. We can expect it to work in favor of leniency.45 But

given the central importance of range-setting, leniency may well have a role to play

outside the court room too. One reason why offenders are overpunished is that

sentencing ranges are set too high. It follows that legislators and sentencing

commissions, to the extent they are uncertain about which of a set of ranges to pick,

should also choose more lenient ranges. A sense of “epistemic modesty” should permeate

the operations of the criminal justice system, and perhaps decisions about

criminalization too.46

ACKNOWLEDGMENTS

This research was funded by the Swedish Research Council. Previous versions of this

paper were presented at the Practical Philosophy and Political Theory Seminar in

Gothenburg and at the 2011 Nordic Network in Political Theory conference in

Stockholm. I am particularly grateful to Thomas Christiano, Gunnar Falkemark, Henrik

45 In starting at the most lenient point of the range this approach resembles Norval Morris’s

“principle of parsimony”. See Morris, The Future of Imprisonment, p. 59. Unlike Morris’s

principle, however, the basis for this approach is exclusively desert-based. Patrick Tomlin has

recently defended a very similar approach, see his “Extending the Golden Thread?”, p. 21.

46 Moore, Placing Blame, p. 68. For this point generally, see also Tomlin, “Extending the Golden

Thread?”

34

Friberg-Fernros, Robert Huseby, Ann-Kristin Kölln, Sune Lægaard, George Schedler,

and two anonymous referees for helpful comments.