“Limiting retributivists” believe that the vagueness of retributive proportionality represents a moral opportunity. They maintain that the state can permissibly harm an offender for the sake of crime prevention and other nonretributive goods, so long as the sentence resides within the broad range of retributively “not undeserved” punishments. However, in this essay, I argue that retributivism can justify only the least harmful sentence within such a range. To impose a sentence beyond this minimum would be cruel from a retributive perspective. It would harm an offender to a greater degree without thereby increasing the realization of our retributivist ends. Thus, if our nonretributive policy aims required a harsher sentence, the offender’s retributive desert could not provide the rationale, and we would need another theory that explains why, if at all, harming an offender as a means of realizing the desired nonretributive good is permissible.
The Limits of Retributivism
Climenko Fellow & Lecturer on Law, Harvard Law School; Assistant Professor of Law, Michigan State University College of Law (starting Fall 2021). I am grateful to the participants of this special issue for their incisive discussion of the piece, as well as to Nicola Lacey and Peter Ramsay for their intellectual encouragement and generosity as I developed an earlier form of the argument.
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Jacob Bronsther; The Limits of Retributivism. New Criminal Law Review 1 July 2021; 24 (3): 301–325. doi: https://doi.org/10.1525/nclr.2021.24.3.301
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