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Abstract
A traditional assumption in retributivist thinking is the view that an offender's desert is determined exclusively on the basis of the gravity of the crime committed. However, this assumption has recently been challenged. Netanel Dagan and Julian Roberts have advocated a dynamic theory of desert, or what they refer to as “the dynamic censure model.” According to this model, certain post-sentencing reactions in the offender should be taken into account in the determination of the offender's desert and the severity of appropriate punishment. The purpose of this article is to assess this dynamic concept of desert. I argue that despite the fact that the model offers a new and interesting approach to desert and sentencing, it also faces a range of theoretical challenges that are not easily answered.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes
1 The gravity of a crime is usually regarded as a function of harm and culpability. We will return to this point shortly. See, for instance, Hirsch, Censure and Sanctions or Hirsch, Deserved Criminal Sentences.
2 Dagan and Roberts, “Retributivism,” 3.
3 Ibid., 5.
4 Ibid., 1.
5 See Hirsch “Proportionality.”
6 For discussions of ordinal proportionality, see for instance Hirsch, Censure and Sanctions; Hirsch, Deserved Criminal Sentences; Ryberg, Ethics of Proportionate Punishment; Tonry, Of One-eyed and Toothless Miscreants.
7 For a discussion of so-called “anchor theories,” see e.g. Ryberg, Ethics of Proportionate Punishment, or Lippke, “Anchoring the Sentencing Scale.”
8 See, for instance, Ryberg Ethics of Proportionate Punishment. For a more general discussion of challenges associated with the determination of the seriousness of crimes, see Ryberg, “Proportionality and Seriousness of Crimes.”
9 For theorists in the retributivist tradition who advocated some sort of interval scaling of crimes in gravity, see, for instance, Kleinig, Punishment and Desert; Hirsch, Censure and Sanctions; Ten, Crime, Guilt and Punishment.
10 For a parallel discussion of the challenges associated with the invocation of intuitions in the discussion of the interpretation of proportionality constraints, see Ryberg 2020.
11 An interesting question which Dagan and Roberts do not address, is whether the fact should be considered that some prisons have an atmosphere which is more conducive to the relevant sort of post-sentence reactions than other prisons. To hold that the extent to which prison conditions are conducive to such reactions is something that should not be taken into account in the determination of an offender's desert seems hard to accept. On the other hand, if the extent to which certain prison conditions have been conducive to such reactions should be taken into account—for instance, if an offender deserves a more lenient punishment if she has managed to show remorse under conditions which are not conducive to such reactions—then this will significantly complicate the determination of the desert of individual offenders who are placed in different prisons. I am grateful to a blind reviewer for directing my attention to this point.
12 Dagan and Roberts, “Retributivism,” 11.
13 Ibid., 7.
14 For instance, it would require a very comprehensive monitoring of an offender in order to be able to determine whether he or she at some point starts celebrating a crime. In particular when it is kept in mind that this celebration would still carry retributive significance even if it takes place many years after the offender has been released from prison.
15 It might perhaps be suggested that the challenge of applicability could be met by holding that the temporal location of a remorseful reaction is something which in itself should be taken into account in the determination of an offender's desert. That is, more precisely, if the reaction occurs earlier then the offender would deserve a more lenient punishment than if this reaction occurs at a later point. This suggestion might explain why the offender who shows remorse after six years would not be over-punished (even though he or she would only have deserved five years in prison had the remorseful reaction occurred earlier, e.g. after four years). However, this suggestion should be dismissed. First, this is not what Dagan and Roberts are suggesting. Second, and more importantly, it is very hard to sustain the view that the temporal location per se should play a role in the determination of an offender's desert. Third, the idea of taking temporal locations of reactions into account will leave one with a highly complex theory which it will be very challenging to develop in a full-fledged form.