Crime-control utilitarians and retributivist philosophers have long been at war over the appropriate distributive principle for criminal liability and punishment, with little apparent possibility of reconciliation between the two. In the utilitarians’ view, the imposition of punishment can be justified only by the practical benefit that it provides: avoiding future crime. In the retributivists’ view, doing justice for past wrongs is a value in itself that requires no further justification. The competing approaches simply use different currencies: fighting future crime versus doing justice for past wrongs. It is argued here that the two are in fact reconcilable, in a fashion. We cannot declare a winner in the distributive principle wars but something more like a truce. Specifically, good utilitarians ought to support a distributive principle based upon desert because the empirical evidence suggests that doing justice for past wrongdoing is likely the most effective and efficient means of controlling future crime. A criminal justice system perceived by the community as conflicting with its principles of justice provokes resistance and subversion, whereas a criminal justice system that earns a reputation for reliably doing justice is one whose moral credibility inspires deference, assistance, and acquiescence, and is more likely to have citizens internalize its norms of what is truly condemnable conduct. Retributivists ought to support empirical desert as a distributive principle because, while it is indeed distinct from deontological desert, there exists an enormous overlap between the two, and it seems likely that empirical desert may be the best practical approximation of deontological desert. Indeed, some philosophers would argue that the two are necessarily the same.

A number of articles and empirical studies over the past decade suggest a relationship between the criminal law’s reputation for being just—its “moral credibility”—and its ability to gain society’s deference and compliance through a variety of mechanisms that enhance the system’s crime-control effectiveness. This has led to proposals for criminal liability and punishment rules to reflect lay intuitions of justice—“empirical desert”—as a means of enhancing the system’s moral credibility. In a recent article, Christopher Slobogin and Lauren Brinkley-Rubinstein (SBR) report seven sets of studies that, in their view, undermine these claims about empirical desert and moral credibility. Instead, say SBR, the studies support their own proposed distributive principle of “individual prevention.” As this article shows, however, SBR have it wrong on both counts: not only do their studies actually confirm the crime-control power of empirical desert, but they provide no support for their own principle of individual prevention. Moreover, that principle, which focuses on an offender’s dangerousness rather than his perceived desert, is erroneously described by SBR as “a sort of limiting retributivism.” In reality, what SBR propose is a system based on dangerousness, where detention decisions are made at the back end by experts. Such an approach promotes the worst of the failed policies of the 1960s, and conflicts with the modern trend of encouraging more community involvement in criminal punishment, not less.

If there can be said to be an "American criminal code," the Model Penal Code is it. Nonetheless, there remains an enormous diversity among the fifty-two American penal codes, including some that have never adopted a modern code format or structure. Yet, even within the minority of states without a modern code, the Model Penal Code has great influence, as courts regularly rely upon it to fashion the law that the state's criminal code fails to provide. In this essay we provide a brief introduction to this historic document, its origins, and its content.