"Is the Principle of Desert Unprincipled in Practice?" by Mcleod

Marah Stith Mcleod (Notre Dame Law School) has published "Is the Principle of Desert Unprincipled in Practice?" on SSRN. Here is the abstract: 

Scholars have long debated whether criminal penalties should be based on what defendants deserve (as retributivists argue) or on the practical benefits that sanctions may achieve (as utilitarians believe). In practice, most states take a pluralistic approach: they treat both desert and utility as important to punishment, with desert operating, at least on paper, as a limiting principle.

Can desert, however, actually limit punishment? Critics answer no. They claim that desert is an indefinite and malleable notion, easily invoked to mask discrimination and rationalize draconian sanctions. Laws in America often emphasize desert, they observe, while feeding mass incarceration.

But the principle of desert is not to blame. A focus on punishing defendants no more than they deserve can constrain punitive impulses, as it has in the context of capital punishment. The real problem lies with our current procedures for judging desert, which sap its power as a limiting principle. These procedures allow sentencing authorities to consider desert and utility at the same time, which blurs two incommensurate concerns and prevents either from serving as a meaningful limit. Furthermore, they often allow judges to define desert without reference to legitimating community norms.

Desert can limit punishment if it is addressed in a more principled way. Sentencing should begin with desert, before any consideration of utility, so that the moral boundaries of punishment are clearly established. Lay juries, not judges, should assess desert, and should have the power to limit punishment based on it, even below statutory minimums. If states allowed defendants to waive this jury sentencing procedure, many might do so in exchange for more favorable plea deals. But the pleading process would become more fair, for prosecutors could no longer threaten statutory penalties no reasonable jury would deem deserved.