This recent paper on changes to the Model Penal Code with respect to sentencing and desert deserves a bit more discussion. Ristroph makes the argument that the Code is at its worst when it uses the language of desert. And while she makes a reasonable argument I think she falls short of capturing why desert is a complicated matter for criminal law.
I may be reading her incorrectly, but I take Ristroph to be making the argument not that desert is inappropriate for criminal law per se, but rather that it is a poor tool for enforcing notions of proportionality. Put that way, it is difficult to disagree. Desert is highly subjective, not only between judges and the lay public/jurors, but even within each group. Determining moral desert rests on very personal notions of ethics, forged not only by moral teachings and education, but by personal experiences. To think that there is one objectively correct desert for a particular criminal act is naive.
This is why the Code rightly incorporates what I would term a hybrid approach to sentencing. By tasking sentencing commissions with collecting and analyzing data in order to determine presumptive sentences, the Code recognizes the need for some reference point for justice. A criminal law system devoid of some anchor, where sentencing is unique to the act, actor and victim creates too much potential for wildly disparate sentences, which may not make sense to society. It is crucial to justice’s legitimacy for the public to view the system as impartial and predictable. One could also make the argument that disparate sentences for similar acts cuts against the effectiveness of deterrence.
The Code does recognize, however, the importance of judges’ role in determining more precisely what justice demands. A system of strictly uniform sentences would do violence to our notions of justice. Thus, judges are empowered to depart from the presumptive sentences issued by sentencing commissions.
But is such a system one in which desert is not a central theme? I would argue that desert continues to play a foundational role in any system of justice and that is as it should be. Yes, desert is subjective and is thus not a good check on proportionality. But the notion that criminal actors ought to receive moral desert for their acts is, I believe, an inherently human impulse.