Retriportionality And Desert Theories In Criminal Justice
I understand the guilty offender to be blameworthy and that desert theories in criminal justice are premised on notions of individual blameworthiness. Within the criminal law this is historically referred to as the mens rea requirement. An agent has the mental state of purpose with respect to a conduct if and only if the agent intends to engage in the conduct and understands its nature. Having a guilty mind means that the criminal knows certain things and chose (or failed to choose) certain things. The problem with proportionality is that it doesn’t properly attend to mens rea: meting out punishment proportionately leaves out differences in mens rea. That is, the same harmful conduct that is done negligently or intentionally will be punished
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We simply perceive when someone is bald, or less bald than someone else. Although we also perceive when a person seems to be more deserving of punishment than another person, if proportionality is cashed out within a retributive framework then our perception is very different. I would think our perception should at least partly be affected by the relevant mitigating factors due to social disadvantage and/or mental impairment and the weight to be given different factors when factors conflict [EXAMPLE HERE OF CONFLICTING FACTORS]. The underlying moral desert on retributive proportionality does not seem vague in the same sense that baldness is vague. Moral desert, the ultimate basis on which retributivists must proportion punishment, offers us no concrete guidance about where to set punishments while maintaining individualized differences in culpability and individual effects of punishment. Proportionality constraints would need to take account of the nearly infinite variety of offender circumstances, the context of the offense, and the different dimensions of punishment. Merely making the assertion that an offender should receive neither too much nor too little punishment offers no determinate criteria for identifying what is to count as too much or too little. It’s not obvious how Wesley’s two conditionals could hold up without such a determinate criteria, since without a determinate criteria they offer no advice about how to identify when the boundaries will be precise in at least some of the non-borderline cases. The vagueness renders it too imprecisely to afford any real
We simply perceive when someone is bald, or less bald than someone else. Although we also perceive when a person seems to be more deserving of punishment than another person, if proportionality is cashed out within a retributive framework then our perception is very different. I would think our perception should at least partly be affected by the relevant mitigating factors due to social disadvantage and/or mental impairment and the weight to be given different factors when factors conflict [EXAMPLE HERE OF CONFLICTING FACTORS]. The underlying moral desert on retributive proportionality does not seem vague in the same sense that baldness is vague. Moral desert, the ultimate basis on which retributivists must proportion punishment, offers us no concrete guidance about where to set punishments while maintaining individualized differences in culpability and individual effects of punishment. Proportionality constraints would need to take account of the nearly infinite variety of offender circumstances, the context of the offense, and the different dimensions of punishment. Merely making the assertion that an offender should receive neither too much nor too little punishment offers no determinate criteria for identifying what is to count as too much or too little. It’s not obvious how Wesley’s two conditionals could hold up without such a determinate criteria, since without a determinate criteria they offer no advice about how to identify when the boundaries will be precise in at least some of the non-borderline cases. The vagueness renders it too imprecisely to afford any real