Chapter 1

Distributing Criminal Liability

and Punishment

T his book is not about the justification of the institution of punish-

ment but rather about how punishment should be distributed once
that institution is established. A long and elaborate literature is found
within moral philosophy and criminal law theory about the former.
While the question of justifying the institution of punishment is impor-
tant and interesting, it is nonetheless academic. Every known organized
society has, and probably must have, some system by which it punishes
those who violate its most important prohibitions.
A variety of reasons may be given to justify the institution of punishment.
The traditional account distinguishes retributivist justifications—giving
deserved punishment as an end in itself—from utilitarian justifications—
giving punishment to advance some future good, such as to reduce future
crime. But the point is that each of these traditional justifications leads to
the same conclusion: support of an institution of punishment. Having a
system of punishment can do justice and can avoid future crime (by
deterring potential offenders, by providing the opportunity to rehabili-
tate and/or incapacitate dangerous offenders, by harnessing the power of
social influence).

Distributive Principles of Criminal Law. Paul H. Robinson. 1

© Oxford University Press 2008. Published 2008 by Oxford University Press.
2 distributive principles of criminal law

This book assumes that one can justify the institution of punishment
and examines how one might justify one or another distribution of pun-
ishment. The latter question is of more than philosophical significance.
How should criminal liability and punishment be distributed within
a punishment system? Who should be punished how much? These are
the questions that every criminal justice system designer must answer,
whether giving instructions to criminal code drafters, sentencing guide-
line drafters, or individual judges exercising discretion in interpreting the
code or in sentencing offenders.
One can imagine using any of the justifications or “purposes” of
punishment as a distributive principle. That is, one could set liability and
punishment distribution rules in a way that would maximize efficient
deterrence, for example, or maximize rehabilitation or incapacitation of
the dangerous, or maximize doing justice. As will become clear later in
these discussions, each purpose of punishment when used as a distribu-
tive principle gives a quite different distribution of punishment. (In con-
trast, when used to justify the institution of punishment, the alternative
“purposes” work together toward a unanimous conclusion in support
of punishment.) Because each distributes liability and punishment dif-
ferently, we must decide which of the competing distributive principles
should prevail when they conflict.
One might initially suspect that the issue of the distribution of crim-
inal liability and punishment is as academic an inquiry as the justification
of the institution of punishment, for the two debates have commonly
been combined into one. But the truth is that setting the criminal justice
system’s distributive principle is of enormous practical importance.
Indeed, it is the single most important decision in constructing a crimi-
nal justice system. It is the means by which the legislature, the most dem-
ocratic branch, can provide needed guidance on fundamental principles
to criminal code and sentencing guideline drafting commissions. And an
articulated principle is essential to guide the exercise of discretion by
individual judges.1 Research has shown that different judges each have
their own personal liability and punishment philosophy. One survey of
federal sentencing judges, for example, revealed that “While one-fourth
of the judges thought rehabilitation was an extremely important goal of
sentencing, 19 percent thought it was no more than “slightly” important;

1 See Paul H. Robinson & Barbara Spellman, Sentencing Decisions: Matching the
Decisionmaker to the Decision Nature, 105 Col. L. Rev. 1124–1161 (2005).
 Distributing Criminal Liability and Punishment 3

conversely, about 25 percent thought “just deserts” was a very important

or extremely important purpose of sentencing, while 45 percent thought
it was only “slightly important or not important at all.”2 Research also
confirms that these differences in philosophy do indeed translate into
different sentences.3 An articulated distributive principle increases the
likelihood that an offender’s punishment will be a product of what he has
done and his personal characteristics rather than a product of the judge
he happens to draw for sentencing.
Many documents purport to give decision makers the guidance of
principle. For example, the original Model Penal Code section 1.02 gives
judges a list of purposes to guide the interpretation of criminal code pro-
visions and the exercise of sentencing discretion:

(1) The general purposes of the provisions governing the defini-

tion of offenses are:

(a) to forbid and prevent conduct that unjustifiably and inex-

cusably inflicts or threatens substantial harm to individ-
ual or public interests;
(b) to subject to public control persons whose conduct indi-
cates that they are disposed to commit crimes;
(c) to safeguard conduct that is without fault from condem-
nation as criminal;
(d) to give fair warning of the nature of the conduct declared
to constitute an offense;
(e) to differentiate on reasonable grounds between serious
and minor offenses.

2 S. Rep. No. 98-225, at 41 n.18 (1983) (Senate Report for Sentencing Act of 1984) (citing
INSLAW/Yankelovich, Skelly & White, Inc., Federal Sentencing at III-4 (1981)).
3 One study done by the judiciary gave 50 judges the same 20 cases to sentence. The dif-
ferences in sentences were staggering. In one extortion case, for example, sentences
ranged from twenty years’ imprisonment and a $65,000 fine to three years’ imprison-
ment and no fine. Id. at 44 n.23; see also id. at 42–43 (citing Anthony Partridge & Wil-
liam Butler Eldridge, The Second Circuit Sentencing Study (1974)). This same disparity
in sentencing is reflected in the sentences given in real cases every day. One study com-
pared the sentences imposed in the different federal circuits. For forgery, as an example,
the average sentence ranged from 30 months in the Third Circuit to 82 months in the
District of Columbia. For interstate transportation of stolen motor vehicles, the ex-
tremes in average sentences were 22 months in the First Circuit and 42 months in the
Tenth Circuit. Id. at 41 & n.21 (citing Whitney North Seymour, 1972 Sentencing Study:
Southern District of New York, 45 N.Y.S. Bar J. 163 (1973)). See generally Marvin Fran-
kel, Criminal Sentences: Law Without Order (1973).
4 distributive principles of criminal law

(2) The general purposes of the provisions governing the sen-

tencing and treatment of offenders are:
(a) to prevent the commission of offenses;
(b) to promote the correction and rehabilitation of offenders;
(c) to safeguard offenders against excessive, disproportionate
or arbitrary punishment;
(d) to give fair warning of the nature of the sentences that
may be imposed on conviction of an offense;
(e) to differentiate among offenders with a view to a just
individualization in their treatment;

Similarly, the Sentencing Reform Act of 1984, which created the United
States Sentencing Commission, provides:

The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph
(2) of this subsection. The court, in determining the particular
sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote re-

spect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defend-
ant; and
(D) to provide the defendant with needed educational or voca-
tional training, medical care, or other correctional treat-
ment in the most effective manner;4

But, as Chapter 2, Section C makes clear, these kinds of statements of

purpose are more facade than guiding principle. Each of the alternative
purposes listed in a subsection above is likely to give a different distribu-
tion of liability and punishment than those listed in other subsections.
The now elderly former Nazi concentration camp torturer may no longer
be dangerous, and therefore no longer in need of incapacitation, but may

4 18 U.S.C. 3553(a).
 Distributing Criminal Liability and Punishment 5

well deserve substantial punishment. The mentally ill offender may so

lack any substantial capacity to understand the nature of his conduct as
to be blameless for it and therefore deserving of complete excuse, yet
nonetheless may be seriously dangerous and in need of incapacitation
and, if possible, rehabilitation.
And the conflicts among the alternative principles are not limited to
the adjudication or sentencing of specific cases. Consider decisions in the
formulation of a criminal code, such as whether the code should give
significance to resulting harm—whether, for example, an inchoate offense
should be punished the same as or less than the substantive offense. An
incapacitation distributive principle might punish an inchoate offense as
severely as its substantive counterpart on the theory that a completed
attempt to commit an offense demonstrates as much dangerousness as
a successful completion if the reason for the failure has little to do with
the offender’s lack of dangerousness and everything to do with police
competence or good luck. On the other hand, a deterrence-based system
would certainly want to punish the completed offense more, if for no
other reason than to assure that some additional punishment remains as
a continuing deterrent threat after the offender has reached the point
where his conduct constitutes a criminal attempt. Moral philosophers, in
contrast, disagree among themselves about whether resulting harm ought
to be significant to criminal liability, suggesting that deontological desert
as a distributive principle would have difficulty resolving the issue. Yet,
laypersons almost universally believe in the significance of resulting harm
in assessing deserved punishment and therefore believe that justice
unequivocally demands a rule that gives greater punishment for the com-
pleted offense that for the inchoate. Hence, a distributive principle based
upon shared lay intuitions of justice (“empirical desert,” as it is called in
Chapter 7) would give great deference to resulting harm.
This natural conflict between alternative distributive principles means
that the “laundry list” approach of the Model Penal Code, the Sentencing
Reform Act of 1984, and most of such existing statements of guiding prin-
ciple are seriously inadequate. If one distributive principle is to prevail,
drafters and judges must be told which one and when. If more than one
principle is to be relied upon as a distributive principle, such a hybrid
distributive principle must articulate the interrelation among the differ-
ent purposes. Without an articulation of the interrelation, the “laundry
list” provides more illusion than guidance. It leaves the decisionmaker free
to decide issues ad hoc and privately, and inconsistently, while portraying
6 distributive principles of criminal law

the decision making as being constrained by principle. One could argue

that a criminal justice system would be better off without such “guiding
principles” as these, for at least then the lack of a principled basis for deci-
sions would be more apparent and therefore more likely to prompt reform.
Chapter 2 says more about the danger of unarticulated hybrid distributive
principles, Chapter 11 discusses how a principled hybrid that defines the
interrelation among the different principles might be constructed, and
Chapter 12 proposes a specific hybrid distributive principle.
There is reason to be hopeful that the dangerousness of the unarticu-
lated “laundry list” approach is gaining recognition. The first change to
the Model Penal Code in the forty-five years since its promulgation is a
reformulation of the Code section 1.02 quoted above. The revised version
attempts to do more to articulate the interrelation among alternative pur-
poses. Though the proposed section has its flaws (discussed in Chapter 11,
Section B), it nonetheless provides an important improvement in clarity
and consistency over the present Code language. One would wish that the
purposes governing the United States Sentencing Guidelines would simi-
larly have their interrelation defined. Indeed, one would wish for such
legislative direction in all jurisdictions in the form of an articulated dis-
tributive principle that can assure rationality and internal consistency in
drafting penal codes and sentencing guidelines and in the exercise of judi-
cial discretion in interpreting statutes and imposing specific sentences.
The goal of this book is to encourage movement toward that end and
to help people think more clearly about how this can be done. The book’s
general plan is this: After a preliminary discussion that makes clear the
criterion that guides each alternative distributive principle and that dem-
onstrates the natural conflict among them in Chapter 2, each alternative
distributive principle is examined in turn to understand its strengths and
weaknesses in Chapters 3 through 9. Then, stepping back, these strengths
and weaknesses are summarized and compared in Chapter 10 and, with
this background, Chapter 11 discusses how a hybrid distributive principle
might be constructed, an exercise illustrated in Chapter 12.
Even if the specific proposal in Chapter 12 does not persuade the
reader—many aspects of the determination of a distributive principle
depend upon one’s value judgments—it is hoped that the process leading
up to that proposal can help the reader think through for herself the
distributive principle that she might prefer, perhaps gaining insights from
the critique of strengths and weaknesses of each alternative.