Chapter 4

Deterrence as a Distributive
Principle

C hapter 3 concludes that there is reason to be skeptical about crimi-

nal law’s deterrent effect—that is, skepticism about the ability to
deter crime through the manipulation of criminal law rules and penal-
ties. What does this mean for the fundamental question, to which this
chapter returns: Should deterrence be used as a distributive principle for
criminal liability and punishment? One may conclude, somewhat obvi-
ously, that deterrence ought not be used as a distributive principle except
in those situations where there is reason to think that the three prerequi-
sites to deterrent effect in fact exist. Yet, as Section A below makes clear,
deterrence is a standard, if not the standard, method of modern analysis
in formulating criminal law rules. Rules typically have been set to opti-
mize deterrence on the assumption that they always will have effect.
Even if one concludes that the analysis of the previous chapter is unper-
suasive, good reasons for serious concern remain. Section B offers argu-
ments for being skeptical about using deterrence as a distributive principle
even if the three prerequisites for deterrent effect were commonly met.125

125 Much of this chapter is taken from Paul H. Robinson & John M. Darley, The Role of
Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its
Best, 91 Georgetown Law Journal 949 (2003).

Distributive Principles of Criminal Law. Paul H. Robinson. 73

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

First, a disabling problem for deterrence as a distributive principle is

its need for information that is not available and not likely to be available
any time in the foreseeable future. Formulating criminal law rules accord-
ing to a deterrence analysis can produce erroneous results if based upon
missing or unreliable data. In fact, inadequately informed analyses can
produce criminal law rules that reduce rather than increase the possibil-
ity of deterrence. In such an informational void, it makes sense to follow
a distributive principle that at the very least can achieve its objectives.
Further, even if full and perfect information were available, the
dynamics of deterrence are dramatically more complex than has been
supposed. The deterrence process involves complex interactions, like
substitution effects, that make deterrence predictions enormously diffi-
cult. And the deterrence process is a dynamic rather than a static one.
Even if a criminal law rule manipulation increases deterrent effect as
hoped, that effect itself can change the existing conditions and thereby
change the deterrence calculations.
Second, any distributive principle for criminal liability and punish-
ment will produce some deterrent effect (if any is to be had). A deterrence-
based distribution makes sense only if it can provide meaningfully greater
efficient deterrent effect than that already inherent in competing distri-
butions that advance other useful goals, such as doing justice. This means
that deterrence can do better than another distribution—such as a desert
distribution—only where it deviates from it. That is, a deterrence-based
distribution can deter better than a justice-based distribution only where
it deviates from a just result.
However, it is just these instances of deviation from desert in which
getting a deterrent effect is most difficult. People assume the law is as they
think it should be, which is according to their own collective notions of
justice. (And, as will be discussed in Chapter 7, the empirical research
suggests that people’s intuitions of justice are based upon their assess-
ment of desert not some other principle.) Thus, the deterrence prerequi-
site of making the deterrence-based rule known becomes a difficult task:
deterrence can only do better than desert by deviating from it; however,
when it does deviate, the deterrence-based rule is not likely to be known.
Further, it is these deviation-from-desert cases in which the system’s
deterrence-based rules are least likely to be followed. Because people
intuitively assess criminal liability and punishment in terms of justice rather
than deterrence, the exercise of police, prosecutorial, and judicial discre-
tion, as well as jury nullification can subvert application of deterrence-based
 Deterrence as a Distributive Principle 75

deviation rules, thus subverting the deterrence program and confusing

the deterrence message.
Finally, even if one assumes for the sake of argument that a deterrence-
based distribution produces a greater deterrent effect than a desert-based
distribution despite its special deviation problems, there is reason to
be concerned that the deterrence-based distribution simultaneously pro-
duces crime because its deviation from the community’s shared intu-
itions of justice can undercut the criminal law’s moral credibility, lessening
its crime-control power as a moral authority, a dynamic that may have
significant crimogenic effect, as Chapter 8 suggests. Thus, even if a deter-
rence-based distribution did successfully produce a greater deterrent
effect than a justice-based distribution, that greater deterrent effect might
be offset by its greater crimogenic effect in undercutting the moral
authority of the criminal law.

A. The Traditional Assumption That the Formulation

of Criminal Law Doctrine Will Influence Conduct
Chapter 3’s view of a limited deterrent effect stands in stark contrast to
the view of criminal law makers of the past four decades who have relied
heavily, almost primarily, on deterrence analysis in formulating criminal
law rules on the assumption that deterrence always works and is relevant
to nearly every aspect of criminal law doctrine. Deterrence is said by some
commentators to be the criminal law’s “primary purpose”126 or its “core
purpose.”127 The Model Penal Code drafters, for example, see incapacita-
tion and desert as merely “subsidiary themes.”128 As illustrated below,
criminal code commentaries, court opinions, legislative histories, and
sentencing hearing transcripts are full of the language of deterrence in
justifying every manner of criminal law rule and practice.

126 Glanville Williams, Criminal Law: The General Part §191 at 601 (2nd ed., 1961);
Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law §2.1 n.88 (1986).
127 Warren v. U.S. Parole Commission, 659 F.2d 183, 188 (D.C. Cir. 1981).
128 Model Penal Code §1.02 comment 14 (1985) states: “Subsidiary themes are to subject
those who are disposed to commit crimes to public control [and] to prevent the con-
demnation of conduct that is without fault.”
76 distributive principles of criminal law

1. Doctrinal Formulations Calculated to Deter

a. Prohibitions129

The most common use of deterrence rationales is in shaping the criminal

law’s prohibitions. They have been used in formulating liability doctrines
determining who should be held criminally liable: in support of the use
of corporate/enterprise liability, in opposition to the use of corporate/
enterprise liability, in support of limiting liability of corporate officials to
the board of directors or high management, in support of the use of
vicarious liability, in opposition to the use of vicarious liability, and in
support of Pinkerton and “common design” rules in complicity.
Deterrence also is used as the guiding rationale in formulating incho-
ate liability rules: in support of the proximity test for attempt, in support
of a “substantial step” test for attempt, in support of limiting the renun-
ciation defense to cases where the offender is successful in avoiding the
offense, and in opposition to an impossibility defense for inchoate liabil-
ity. A useful example of deterrence-based analysis, which nicely illustrates
how drafters really do imagine that the rule they adopt will translate into
influence over decision on the street, is seen in the Model Penal Code
drafters’ justification of a renunciation defense to attempt:

[The defense] provide[s] actors with a motive for desisting from

their criminal designs, thereby diminishing the risk that the sub-
stantive crime will be committed. While under the proposed sub-
section such encouragement is held out at all stages of the criminal
effort, its significance becomes greatest as the actor nears his
criminal objective and the risk that the crime will be completed is
correspondingly high. . . . [B]ecause of the importance of encour-
aging desistance in the final stages of the attempt, the defense is
allowed even when the last proximate act has occurred but the
criminal result can be avoided, as for example when the fuse has
been lit but can still be stamped out. If, however, the actor has put
in motion forces that he is powerless to stop, then the attempt has
been completed and cannot be abandoned.130

129 For specific authorities, see Role of Deterrence, supra note 125, at 957–958.
130 Model Penal Code §5.01 comment 359–360 (1985) (emphasis added).
 Deterrence as a Distributive Principle 77

Similar kinds of behavioral control reasoning is found in justifying liabil-

ity rules for solicitation and conspiracy.131
A deterrence rationale also is relied upon in justifying decisions not
to criminalize certain conduct, often on the view that a sanction would be
ineffective or unnecessary as a deterrent. A deterrence rationale has been
offered to explain, for example, the decriminalization of suicide, assisting
a suicide, failing to pay a valid debt, self-abortion and the preparation of
home-made abortifacients, and for limiting the “joyriding” offense to the
person who actually operates or aids in the operation of the vehicle (thus,
excluding willing passengers).

b. Culpability Requirements, Mitigations, and Defenses

Lawmakers’ view that doctrinal manipulation can enhance or maintain

deterrent effect appears as well in the formulation of culpability require-
ments, mitigations, and excuse defenses. For example, in United States v.
Park,132 the president of Acme Markets, Inc., a national retail food chain
with approximately 36,000 employees, 874 retail outlets, 12 general ware-
houses, and 4 special warehouses, was held criminally liable for violations
of the Federal Food, Drug, and Cosmetic Act when a company warehouse
in Baltimore, Maryland, held food in a building that could be exposed to
contamination by rodents, even though there was no indication that Park
was negligent as to the violation.133 Such strict liability is defended on
deterrence grounds:

[A] person engaged in a certain kind of activity would be more

careful precisely because he knew that this kind of activity was
governed by a strict liability statute. . . . [T]he knowledge that cer-
tain criminal sanctions will be imposed if certain consequences

131 Model Penal Code §5.02 comment 366 (1985); Model Penal Code §5.03 comment 458
(1985).
132 421 U.S. 658 (1975).
133 It could be argued that Park was blameworthy for his failure to take sufficient remedial
steps after being informed of the violation—he ordered a cleanup but gave this order
to the same people who had allowed the problem to occur. But, while one might argue
that the government could have shown Park’s negligence—it is unclear whether they
could have—the point is that the Park opinion allows statutes that do not require such
a showing and, thus, allow criminal liability even if it is clear that no such showing
can be made, the defendant acted entirely reasonably. See Norm Abrams, Criminal
Liability of Corporate Officers for Strict Liability Offenses—A Comment on Dotter-
weich and Park, 28 U.C.L.A. L. Rev. 463, 476–477 (1981).
78 distributive principles of criminal law

ensue might induce a person to engage in that activity with much

greater caution than would be the case if some lesser standard
prevailed.134

Another useful example is found in the well-known case of Regina v.

Dudley and Stephens,135 in which the defendants, adrift in an open boat at
sea and soon to die from starvation, killed and drank the blood of a near-
death cabin boy, an act that kept them alive long enough to be rescued.
They were convicted of murder and sentenced to death. The court denied
their claim of a necessity defense in large part because the court feared
that recognition of such a defense would undercut criminal law’s prohi-
bitions at a time when its deterrent threat must be at its strongest.

We are often compelled to set up standards we cannot reach our-

selves, and to lay down rules which we could not ourselves satisfy.
But a man has no right to declare temptation to be an excuse,
though he might himself have yielded to it, nor allow compassion
for the criminal to change or weaken in any manner the legal defini-
tion of the crime. It is therefore our duty to declare that the prison-
ers’ act in this case was wilful murder.136

The influence of a deterrence rationale is also apparent in the formu-

lations of the test for negligence. Many jurisdictions continue to use a
purely objective standard against which to judge whether a person’s fail-
ure to be aware of a prohibited risk is culpable. They refuse to take ac-
count of the particular capacities of the person at hand—of whether the
person had the capacity to have met the reasonable person standard—
for fear that any individualization would undercut the force of the law’s
prohibitions.

134 Richard A. Wasserstrom, Strict Liability in the Criminal Law, 12 Stan. L. Rev. 731, 736
(1960) (emphasis added). He also notes that the deterrent effect may be in deterring
people from engaging in the strict Liability activity at all if they were concerned that
they might not be able to avoid the prohibited harm. “[T]he presence of strict liability
offenses might have the added effect of keeping a relatively large class of persons from
engaging in certain kinds of activity.” Id. at 737.
135 14 Q.B.D. 273 (1884). For more details on the case, see Paul H. Robinson, Criminal
Law Case Studies 14 (2nd ed. 2002); Brian Simpson, Cannibalism and the Common
Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Leading
Proceeding to Which it Gave Rise (1984).
136 14 Q.B.D. at 288 (emphasis added). The Crown afterwards commuted the defendant’s
sentence to six months’ imprisonment. Id.
 Deterrence as a Distributive Principle 79

Thus, in State v. Williams,137 loving parents with little education and

limited intelligence were held to have failed to meet the reasonable person
standard in failing to get needed medical care for their seventeen-month-
old child, who died of complications from what began as a toothache.
The court ruled that it was sufficient negligence to support liability
for manslaughter if “the conduct of a defendant, regardless of his igno-
rance, good intentions and good faith, fails to measure up to the conduct
required of a man of reasonable prudence.”138 Reliance upon a purely
objective (unindividualized) standard of negligence is justified in much
the same way as the result in Dudley and Stephens: as necessary to main-
tain a clear standard of conduct. As Holmes concludes, the reason for
adopting deterrence is the criminal law’s “immediate object and task to
establish a general standard . . . of conduct for the community, in the
interest of the safety of all.”139
To give just a few of many examples, deterrence arguments are used:
in support of strict liability offenses, in opposition to strict liability
offenses, in opposition to liability based upon negligence, in support of
liability for negligent homicide and negligent assault with a deadly
weapon, in support of an objective (unindividualized) standard of reck-
lessness, in support of a purely objective (unindividualized) standard for
the provocation mitigation to murder, in opposition to the individual-
ized extreme emotional disturbance mitigation, in support of the par-
tial responsibility mitigation in murder, in support of recognizing an
insanity defense, an immaturity defense, a duress defense, in support of
a reasonableness requirement for a mistake as to a justification defense,
an involuntary act defense, a statute of limitation, and an entrapment
defense, and in opposition to recognizing a general reasonable mistake of
law excuse and a duress defense. Deterrence arguments also have been
used to support particular formulations of excuse defenses, including in
support of a formulation of the insanity defense that recognized only a

137 4 Wn. App. 908, 484 P.2d 1167 (Wash. App. 1971).
138 Id. at 913. Similarly, in Edgmon v. State, 702 P.2d 643, 645 (Alaska App. 1985), the
court holds that the “peculiarities of a given individual—his or her intelligence,
experience, and physical capabilities—are irrelevant in determining criminal negli-
gence . . . since the standard is one of a reasonably prudent person.”
139 Commonwealth v. Pierce, 138 Mass. 165, 176 (1884). See also Richard Singer, The
Resurgence of Mens Rea: II—Honest But Unreasonable Mistake of Fact In Self
Defense, 28 B.C.L. Rev. 459, 489 (1987).
80 distributive principles of criminal law

cognitive dysfunction and in support of one that also recognized a con-

trol dysfunction.140

c. Grading Judgments141

An assumption that doctrinal formulations control deterrent effect also

is reflected in the rationales offered in setting offense grades. An example
is found in the popular felony-murder rule, which treats even a purely
accidental killing during all or certain felonies as murder. The rule’s tra-
ditional rationale sees the deterrent threat of murder’s severe sanctions as
making felons more careful to avoid accidental injury.

[I]f experience shows, or is deemed by the law-maker to show,

that somehow or other deaths which the evidence makes acciden-
tal happen disproportionately often in connection with other fel-
onies, or with resistance to officers, or if on any other ground of
policy it is deemed desirable to make special efforts for the preven-
tion of such deaths, the law-maker may consistently treat acts
which, under the known circumstances, are felonious . . . as having
a sufficiently dangerous tendency to be put under a special ban.
The law may, therefore, throw on the actor the peril, not only of
the consequences foreseen by him, but also of consequences
which, although not predicted by common experience, the legisla-
tor apprehends.142

The rule is thought to have the useful collateral effect of providing

an additional deterrent to felonies generally, especially to dangerous
felonies.143
Another example of adjusting grade to enhance deterrence is found
in the “three strikes” and other habitual offender statutes. Part of their
justification no doubt is the incapacitation of dangerous offenders, future
dangerousness being shown by the repeated past offenses. But such
provisions also are sought to be justified on deterrence grounds. As the

140 For specific authorities, see Role of Deterrence, supra note 125, at 961–963.
141 For specific authorities, see Role of Deterrence, supra note 125, at 964.
142 Oliver W. Holmes, The Common Law 49 (1881) (emphasis added).
143 “[The] rational function of the felony-murder rule is to furnish added deterrent to the
perpetration of felonies which, by their nature or by the attendant circumstances,
create a foreseeable risk of death.” State v. Goodseal, 220 Kan. 487, 492, 553 P.2d 279,
285 (1976).
 Deterrence as a Distributive Principle 81

federal sentencing guidelines explain, “General deterrence of criminal

conduct dictates that a clear message be sent to society that repeated
criminal behavior will aggravate the need for punishment with each
recurrence.”144 Indeed, it is in this context—habitual offender statutes—
that it has been argued that “deterrence is the surest ground for
punishment.”145
Rummel v. Estelle146 illustrates such deterrence reliance. Thirty-year-
old Rummel frequently engaged in petty larceny or petty fraud. On a hot
summer day, Rummel offered to fix a bar’s broken air conditioner for
$129.75, with no intention of doing so. He was caught and convicted of
theft, a felony under then-existing state law. After the state presented evi-
dence of two prior felonies, a “three-strikes” recidivist statute required
that Rummel receive a sentence of life in prison without parole. The
United States Supreme Court denied his appeal, concluding that the stat-
ute did not violate the Eighth Amendment’s prohibition against cruel
and unusual punishment.147 Rummel’s crime, a minor fraud, hardly
seems to deserve life imprisonment without parole. Indeed, the cumula-
tive effect of his entire criminal career—whether or not he had been
formally sanctioned and punished for his earlier crimes—does not seem
to merit such severe liability, at least on desert grounds. Yet three-strikes
laws are willing to tolerate this deviation from justice in part in the name
of general deterrence. This same use of grading determinations to opti-
mize deterrent effect has been offered in support of a variety of offense
grade aggravations, such as grading according to type of victim (old, young,

144 U.S.S.G. ch.4, pt. A, intro. comment.

145 “[S]ince retributive norms are so unsettled and since incapacitation may, by removing
one offender from the pool of offenders, simply make a career in crime more attrac-
tive to someone else, who is balanced on the razor’s edge between criminal and legiti-
mate activity and who now faces reduced competition in the crime ‘market.’” U.S. v
Jackson, 835 F.2d 1195, 1197 (1987) (Posner, Circuit Judge, concurring, citing Ehrlich,
On the Usefulness of Controlling Individuals: An Economic Analysis of Rehabilitation,
Incapacitation, and Deterrence, 71 Am. Econ. Rev. 307 (1981)).
146 For a more detailed account of the Rummel case, see Rummel v. Estelle, 498 F. Supp.
793 (W.D. Tex. 1980); Tom Nelson, Rummel Ordered Released for Appeal, San
Antonio Express, Oct. 4, 1980, at 11C; S.A. Man Gets Life, San Antonio Express, Apr.
13, 1973; Appeals Court Upholds Life Sentence for San Antonian, San Antonio
Express, Jan. 13, 1979; S.A. Man Finally Free After 8-Year Ordeal, San Antonio Express,
Nov. 15, 1980; Courts to Review Tough Texas Law: Billy Sol Bilks Companies Out of
Millions; Rummel’s Fraud Totals $229.11. Estes Serving 10 Years—Rummel Gets Life,
San Antonio Express, Sept. 9, 1979, at 14A.
147 See Rummel v. Estelle, 445 U.S. 263 (1980).
82 distributive principles of criminal law

or police officer) or location (school), along with countless other grading

decisions that elevate punishment to “send a message.”148

d. Sentencing Decisions

Sentencing judges and sentencing guideline drafters share the apparent

assumption of code drafters and appellate judges that their decisions will
influence the extent of deterrent effect. Consider the case of DeSean
McCarty, a young African American from a crime-ridden South Chicago
neighborhood.149 McCarty accepted an offer from one Griffin to “rent”
Griffin’s fiancée’s car if McCarty, a drug user, would give Griffin some
drugs. The exchange was made, but McCarty did not return the car at the
agreed time. A few days later, McCarty was sitting in the car when a police
cruiser drove by. Not wanting to get caught in the stolen car with drugs,
he sped off, then abandoned the car and fled on foot. A police vehicle, in
giving chase, ran down and killed an officer pursuing on foot. McCarty

148 Deterrence arguments have been used in support of a separate offense of robbery
(rather than relying upon offenses of theft and assault); in support of grading a vehic-
ular killing while intoxicated as manslaughter even without a showing of negligence
or causation; in opposition to application of the felony-murder rule to killings by
nonfelons during the felony; in support of the premeditation aggravation for first
degree murder; in rejecting a mere grade reduction for renunciation (preferring a
complete defense); in support of grading inchoate liability less than that for the sub-
stantive offense, and, where it is graded the same as the substantive offense in support
of making an exception to this rule for first degree felonies; in support of grading theft
of livestock more than other thefts of equal or greater value because the former are
particularly easy to commit and difficult to detect; in support of a lower grade for
intercourse upon invalid consent (by mistake or trick) than by force; in support of
grading theft by amount stolen; in support of reduced grading for “joyriding” (in
comparison to theft); in support of grading credit card fraud of even a trivial amount
as at least a misdemeanor; in support of grading incest no higher than a class three
felony, even if extreme moral indignation of the community would call for a higher
grade; in support of a grading reduction for a kidnapper who “voluntarily releases the
victim alive and in a safe place prior to trial”; and in support of relatively low grading
of perjury. For specific authorities, see Role of Deterrence, supra note 125, at 965–967.
149 For a more detailed account of the McCarty case, see Telephone Interview by C. Todd
Inniss, Eve Brensike, & Colette Routel with Frank Rago, Public Defender, Markham
Public Defender’s Office (Feb. 1999) (notes on file with authors); Sarah Karp, Mother
Copes with Cop’s Death; Markham Officer Struck by Harvey Police Car, Daily
Southtown, Sept. 22, 1997; Karen Mellen, Reckless Abandon; Families Want Driver
Charged with Murder, Chicago Tribune, Oct. 7, 1998; T. Shawn Taylor, Cops Arrest
Teen Linked to Officer’s Fatal Chase; Police Want Subject Held Accountable, Chicago
Tribune, Sept. 23, 1997; T. Shawn Taylor, Markham Cop’s Death Becomes Murder
Case; Bond Hearing Set in Fatal Police Chase, Chicago Tribune, Sept. 24, 1997; Paul H.
Robinson, Criminal Law Case Studies 1–5 (2nd ed. 2002).
 Deterrence as a Distributive Principle 83

was convicted for the death of the officer under the Illinois felony-murder
rule, which punishes as first-degree murder any causing of death in the
course of a felony.150 As has already been noted, the felony-murder rule
itself has strong deterrent backing. The sentencing judge in McCarty also
thought to advance deterrence through the exercise of his sentencing dis-
cretion. Though he could have mitigated the harshness of the rule, instead
he imposed a sentence of forty years in prison, explaining that he needed
to “send a message” and that “a sentence does need to be imposed that
would deter others from committing such a crime, a high speed chase
with the police.”151 Such a deterrence rationale is common in the formu-
lation of a wide range of sentencing rules and policies.152

2. “Deterrence Speak” versus Deviations from Justice

a. “Deterrence Speak”

It is possible to give too much meaning to the ubiquitous use of deter-

rence rationales, for much of the use of deterrence as a justification may
be just a form of thoughtless expression, the standard vocabulary that
modern criminal law theorists and lawmakers have come to use to express
themselves. Instead of saying that “conduct X is harmful or evil” and,
therefore, should be criminalized, it may have become common to say
“conduct X should be deterred.” (And instead of saying that “the conduct
was involuntary” and, therefore, should be exculpated, one might refer
to it as “nondeterrable.”) One may speculate about the reasons for such

150 Illinois continues to read the felony-murder rule broadly where it applies, although
the rule’s application has been limited to “forcible” felonies. Ill. Comp. Stat. §5/9-
1(a)(3); see, e.g., People v. Lowery, 687 N.E.2d 973 (Ill. 1997) (upholding felony-
murder conviction for robber where victim shot at fleeing robber with gun robber
had dropped, killing bystander).
151 People v. McCarty, Circuit Court of Cook County, No. 97 CR 27339, Sentencing
Transcript 00392:11–13 (Sept. 15, 1998).
152 This includes, for example, arguments in support of the death penalty, in opposition
to the death penalty, in support of automatic imposition of the death penalty on life-
imprisonment prisoners who kill, in support of jail time for drunk driving, in support
of a statutory maximum for fines of double the pecuniary gain, in support of applying
a mandatory penalty enhancement for a subsequent offense to a second offense on a
simultaneous conviction, in support of higher fines for corporate offenders, in sup-
port of a judicially imposed minimum term of imprisonment, in support of fines for
offenses of pecuniary gain, and in guidelines for the exercise of judicial discretion in
setting the length of a prison sentence and the amount of a fine. For specific authori-
ties, see Role of Deterrence, supra note 125, at 968.
84 distributive principles of criminal law

reliance upon “deterrence speak.” Kahan argues that, “Citizens conven-

tionally defend their positions in deterrence terms only because the alter-
native is a highly contentious expressive idiom, which social norms,
strategic calculation, and liberal morality all condemn.”153
“Deterrence speak” is common in a variety of contexts in which the
end result is to suggest a rule that makes sense under nearly any distribu-
tive principle, including that of doing justice. It is used, for example, as the
explanation for criminalizing: intercourse with young children, tamper-
ing with private records, incest, corruption in sporting events, retaliation
against participants in official proceedings, witness tampering, bail jump-
ing, obstruction of a public passageway, public indecency, and in support
of greater punishment for armed robbery than for unarmed robbery.154
These criminalization decisions are hardly startling conclusions. One
could as easily say in each instance that such conduct ought to be crimi-
nalized because “it is condemnable conduct.” In other words, a deterrence
explanation for the rule does not necessarily mean that the writer is in
reality relying upon a deterrence cost-benefit analysis and has concluded
that the deterrent benefits outweigh the deterrent costs. That deterrence
language may have simply become the common mode of expression in
modern criminal law analysis is supported by the fact that it commonly is
offered both in support of and in opposition to the same position, as seen
in many instances in the above lists of positions justified with deterrence
rationales.
Indeed, some deterrence explanations for a conclusion are suffi-
ciently frivolous as to suggest that no actual deterrence analysis has gone
on, for any such analysis would surely suggest a different or at least a
more nuanced conclusion. For example, as noted above, some writers
offer a deterrence explanation for providing excuse defenses, such as insan-
ity, immaturity, or duress. They reason that a general deterrent purpose

would not be served by conviction and punishment of the insane,

for “the examples are likely to deter only if the person who is not
involved in the criminal process regards the lessons as applicable
to him,” which he is likely to do “only if he identifies with the
offender and with the offending situation.” It is unlikely that the
sane person . . . will identify with the insane defendant, and thus

153 Dan M. Kahan, The Secret Ambition of Deterrence, 113 Harv. L. Rev. 413, 414
(1999).
154 For specific authorities, see Role of Deterrence, supra note 125, at 971–972.
 Deterrence as a Distributive Principle 85

the insane cannot be effectively used as a deterrent example to

others.155

One may speculate that the conclusion—in favor of recognizing an insan-

ity defense—came first to the writer, and that the “analysis” is simply a
best effort at giving the obligatory deterrence argument in support of the
desired conclusion. Clearly, a true general deterrence analysis might as
easily suggest the opposite conclusion or at least would reveal conflicting
deterrent interests. Though the insane defendant at hand might not be
deterrable, and though he will be seen by third parties as different from
themselves, there is reason to think that (if general deterrence works at
all) it would be advanced by sanctioning the insane offender. The insane
offender provides a useful opportunity for the law to make clear just how
serious it is about punishing the violation. “If the law sanctions even an
insane offender,” it might be understood as saying, “make no mistake that
it will sanction you if you commit this offense.” Indeed, punishing the
insane offender may be the only means by which the law can dissuade
those potential offenders who assume that, if caught, they can escape the
threatened sanction by false claims of excuse.156
Whatever the reasons for the use of “deterrence speak,” the practice
highlights just how pervasive is the deterrence orientation of modern
criminal law. Deterrence may have become not only the standard analytic
form but also the standard expressive form, shaping how we are to think
and talk about problems of criminal law theory. This analytic and lin-
guistic domination is bizarre indeed if criminal law formulations rarely
have deterrent effect.

b. Deterrence Rationales That Do Real Work: Deviations

from Justice

Not all use of deterrence arguments is habitual “deterrence speak” or fab-

ricated arguments to give a deterrence justification for a formulation

155 LaFave & Scott, supra note 116, at §7.1, 520–521 (emphasis in original), quoting
Abraham Goldstein, The Insanity Defense 13 (1967).
156 Further, there is a deterrence argument for imposing greater liability in all cases of
excuse in which either internal or external forces press an actor toward a violation. As
Stephen notes in arguing against a duress defense, for example, “it is at the moment
when temptation to crime is strongest that the law should speak most clearly and
emphatically to the contrary.” James Fitzjames Stephen, 2 A History of Criminal Law
in England 107 (Lenox Hill Publishing, 1973) (1883).
86 distributive principles of criminal law

based, in truth, on other considerations. Deterrence analysis often does

generate results that conflict with other distributive principles, such as
desert, and is followed nonetheless.
Some examples from discussions above illustrate the point. Recall
the felony-murder rule, as seen applied in the McCarty case, which autho-
rizes (and a deterrence-focused sentencing judge imposes) a forty-year
sentence for fleeing from police. In Dudley and Stephens, the need to keep
clear the deterrent threat against killing and cannibalism demands the
death penalty, even though the court essentially concedes it is imposing a
standard of conduct that it might not be able to meet itself. In Park, the
president of Acme Markets, Inc., a national retail food chain with approx-
imately 36,000 employees, 874 retail outlets, 12 general warehouses, and
4 special warehouses, is held criminally liable for a health violation in one
of the company warehouses, even though Park knew nothing of and was
not negligent as to the violation. In Rummel, the defendant is given a life
sentence for a $129.75 air conditioner repair fraud because of his prior
felony convictions of a similar nature. In Williams, loving parents of lim-
ited intelligence and education are held for criminally negligent homi-
cide when their failure to get medical care for their baby leads to its death,
despite their likely inability to meet the purely objective standard of care
the court insists upon. In each case, the lawmakers and courts use deter-
rence explanations to help justify liability rules and the exercise of discre-
tion that produces a disposition in conflict with desert.
How do these five cases fare in light of the deterrence-skeptical con-
clusions summarized in Chapter 3? One or more of the deterrence-
prerequisite hurdles is likely to trip up a deterrent effect for many if not
most of these cases. McCarty, who gets felony-murder liability and a
forty-year sentence for fleeing from police, probably knew nothing of the
felony-murder rule or its application to him when he chose to flee, nor
are others like him likely to apply the intended lesson in their drug-addled
brains when the next police car appears. For Dudley, and others like him,
for whom a painful death from starvation looms, little, if anything, will
deter. People like Rummel might stop their petty frauds if they knew they
would result in life imprisonment, but few are likely to perceive a mean-
ingful chance of suffering such a sentence for such a fraud—and they
would be right: they have a greater chance of being struck by lightning.
Most of such potential offenders probably don’t even know that such a
life imprisonment rule is applicable to them. (Do you know the terms of
your state’s habitual offender statute, or even if it has one?) Park, as the
 Deterrence as a Distributive Principle 87

executive of a large and respectable corporation, no doubt would be

appalled at the thought of a criminal conviction, but he also is not likely
to know about the rodent droppings in Baltimore or, even if he did, that
they create a risk of criminal conviction for him. (If executives did believe
that they would be strictly criminally accountable for such instances—rat
feces in a warehouse in Baltimore—we would have few volunteers for
Park’s vacant position.) The Williamses, and other parents like them, will
know little of the criminal law’s liability rules or the nuances of the alter-
native negligence standards and, in any case, they will have no reason to
think that such rules are applicable to them because, in their view, their
baby only has a tooth ache. Yet these dubious contributions to the law’s
deterrent threat are purchased at some considerable expense, in both the
injustices they do and the reputational damage they cause to a criminal
justice system that is seen as indifferent to doing injustice. More on this
in Section B.4. below and in Chapter 8.

B. Difficulties of Deterrence as a Distributive Principle

There are a number of reasons that one might decide against distributing
criminal liability and punishment to optimize deterrence. The most obvi-
ous reason comes from Chapter 3’s conclusion that doctrinal manipula-
tion to optimize deterrence will rarely achieve its desired effect. That is,
deterrence may be a good reason for having a criminal justice system that
punishes violators, but it is at best ineffective as a guide for distributing
liability and punishment within that system. Deterrence may be a sound
justificatory purpose for the institution of punishment but a poor prin-
ciple for its distribution.
Assume for the sake of argument, however, that some deterrent effect
exists. Indeed, it is conceded that some doctrinal manipulation can have
a deterrent effect. The new leaders in Aliabad introduced a policy that
worked to reduce what they regarded as lawlessness: the bullet-ridden
robbers’ bodies were hung from a tank barrel outside the village for two
days.157 But even less draconian rules can work. In specific situations the
rules may be publicly known, the target actors may be dispositionally
rational and in circumstances that allow for rational calculation, the rate

157 C. J. Chivers, New Leaders Send a Signal By Hanging Bandit’s Body, N.Y. Times, Dec 3,
2001, at B4, col. 6.
88 distributive principles of criminal law

of detection may be high and a reasonable certainty of punishment may

exist. But even in such situations, there remain good reasons to be skepti-
cal of relying upon deterrence analysis in formulating criminal liability
and punishment rules.

1. The Information and Complexity Problems

Building a deterrence-based liability and punishment system requires an
enormous amount of information, most of which we do not have and are
not likely to have in the foreseeable future. The dynamics of the deter-
rence effect, where it does exist, can be enormously complex and can have
interactive effects that we do not yet understand. In the absence of ade-
quate information and of an understanding of the complexities of the
dynamics of deterrence, reliance upon deterrence analysis to formulate
criminal law doctrine seems reckless. Such uninformed analysis can as
easily lead to formulations that reduce deterrence as increase it.
Consider the wide-range of factors that Chapter 3 shows to be impor-
tant to a deterrence calculation. For example, what does a potential
offender: perceive as the chance of getting caught, convicted, and pun-
ished? predict to be the amount of punishment associated with each of
the possible conviction outcomes? perceive to be the degree of painful-
ness associated with each possible punishment outcome? (i.e., how pain-
ful does he consider, say, a $10,000 fine, two weeks in jail, a three-year
prison sentence, solitary confinement for life?) perceive to be the likely
delay in any anticipated punishment? perceive to be the attractiveness of
the anticipated benefit of the contemplated offense?
Further, deterrence calculations require a sense of the equation by
which the target audience gives relevant weights to each of these factors.
For example, it was noted previously that, if the probability of punish-
ment is high—that is, that a potential offender is likely to get caught for
drunk driving or running a red light—even moderately painful punish-
ments seem sufficient to deter the conduct, but there no doubt is a break
point of punishment probability below which the extent of punishment
threatened becomes irrelevant to the target. Where is that break point?
Does it vary with the offense and the situation? The animal data similarly
hints that, as the likelihood of punishment declines, the deterrent effect
soon becomes greatly reduced or even negligible. Does that suggest that
the probability of punishment might best be weighted more highly in the
deterrence equation than should the intensity of the punishment? What
 Deterrence as a Distributive Principle 89

weight should be given to the delay in punishment (which the animal

studies also suggest can be a powerful variable)? A reliable deterrence cal-
culation would need to sort out just how much more weight should be
given to probability of punishment than to its intensity or to its timing or
to other factors.
Consider as well the difficulty in obtaining a reliable measure of the
relevant information. We not only need “objective” measures of those
factors but also “psychophysical” measures that translate, for instance, the
objective measure of the average prison sentence for robbery, of say five
years, into the quantum of Benthamite pain corresponding to five years
of prison in the mind of the person contemplating the crime. As the
adaptation and duration-neglect discussions in Chapter 3 illustrate, this
calculation can be enormously complex and counterintuitive.
Still further, one cannot underestimate the ability of erroneous data
on one factor to distort the calculation. Part of the point here is that
deterrence calculations are not intuitive. The results will depend upon
the numbers, not on a general principle that by itself may make sense. For
example, one aspect of deterrence analysis would want to impose a greater
punishment on a more serious offense—murder more than assault or
burglary—if for no other reason than to deter a person who has commit-
ted the lesser offense from going further to commit the greater offense—
for example, to keep the burglar who is discovered by the home owner
from killing the home owner to avoid being identified as a burglar.
However, imagine a situation where the punishment rate is high for the
more serious offense and low for a less serious offense. (In fact, the pun-
ishment rate for murder is approximately thirty times that for burglary.158)
The deterrence calculations might actually suggest that the less serious
offense should be punished more severely. Recall that the probability of
punishment is an important determinant of the total punishment cost.
Thus, a deterrence analysis may increase punishment on a low capture-
rate offense in order to maintain a sufficiently serious deterrent threat.
Therefore, depending on exactly how the punishment weight calculations
come out, a deterrence optimizing theorist might conclude that one
should have a greater penalty for the less serious offense! The point is not
a hypothetical one. Recall, for example, the drug laws driven by the logic
of deterrence set prison terms for possession of relatively small amounts

158 See Paul H. Robinson & John M. Darley, Does Criminal Law Deter?, supra note 17, at
173, Table 1, col. (d).
90 distributive principles of criminal law

of cocaine as considerably higher than those given for various crimes of

violence.159
Even if one had good information on the basic conditions that may
influence deterrent effect, the calculations are all the more complex
because of potential dynamics that one’s proposed rule itself may trigger.
That is, one rule might make sense given the conditions that presently
exist, but the introduction of that rule might quickly change the condi-
tions. For example, Katyal points out that substitution effects are impor-
tant to consider.160 One might be inclined to increase the threatened
punishment in order to deter an offense of moderate harm, but before
doing so, one must consider whether the potential offender will substi-
tute an offense of more serious harm. There are drug addicts who steal to
obtain money for their addictive habits. If we increase the punishment
for burglaries of empty houses, will we cause the addicts to turn to assaults
of citizens to gain the money to support their habits?
Consider another example. Bar-Gill and Harel suggest that, while
we normally think of the crime rate as a product of the factors that ef-
fect deterrence—such as the probability and amount of the expected
sanction—in fact the crime rate can be a determinant of these factors.161
For example, a higher crime rate makes fewer resources available per
crime and reduces the probability of detection; a lower crime rate may
have a reverse effect. An increased rate of crime also may delay the impo-
sition of punishment due to congested courts, for example, which causes
the future punishment discount to be incrementally higher, thus reduc-
ing the perceived punishment “cost”; a decrease in crime rate might have
the reverse effect.162

159 See, e.g., Mark Osler, Indirect Harms and Proportionality: The Upside-down World of
Federal Sentencing, 74 Miss. L.J. 1, 1–2 (2004) (“Under [Federal Sentencing] Guidelines,
a woman who holds just six grams of crack for her own use is assigned a higher offense
level (twenty-six) than someone who commits criminal sexual abuse of a minor
(offense level twenty-four), a man who commits negligent homicide by recklessly
shaking a baby to death (offense level eighteen), a woman caught stealing six million
dollars of public money (offense level twenty-four), or the executive who orders
employees to dump a truckload of toxic waste knowing that people may die as a result
(twenty-four). The crack possessor, in fact, receives the same offense level as that appli-
cable to those who finance terrorist organizations (offense level twenty-six). That’s
right—possessing crack is treated the same as funding al-Qaeda.” (footnotes omitted)
160 Neil Kumar Katyal, Deterrence’s Difficulty, 95 Mich. L. Rev. 2385 (1997).
161 See Oren Bar-Gill & Alon Harel, Crime Rates and Expected Sanctions: The Economics
of Deterrence Revisited, 30 J. Legal Stud. 485, 485–486 (2001).
162 Id.
 Deterrence as a Distributive Principle 91

Thus, one might set rules based on present conditions but then, as
soon as one’s rules begin to have effect, it would cause those conditions to
change—and thereby change the calculations that justified the rules! In
other words, not only does reliable deterrence analysis require informa-
tion that is not now available and an understanding of the interrelation
among the relevant factors that we do not now have, but it also requires a
constant updating of the analysis because the relevant factors themselves
are constantly in motion. These are not the circumstances under which it
one can have much confidence in setting criminal law doctrine according
to attempts at deterrence analysis.

2. The Problem of Comparative Deterrent Effect:

The Deterrent Effect Inherent in Other
Distributive Principles
All distributions of punishment will have some kind of deterrent effect.
The claim of a deterrent distribution is that it can have a greater (effi-
cient) deterrent effect than any other distribution. If one chooses instead
to focus on factors that advance another distributive principle, such
as those that would optimize rehabilitation or incapacitation of the dan-
gerous, one might well increase the effectiveness of those other crime-
control mechanisms but at the expense of the deterrence mechanism.
Thus, when deciding between deterrence and incapacitative criterion, for
example, one would want to look at their relative crime-control benefit
through both deterrence and incapacitation.
A deterrence distribution will have some incapacitative effect, just as
an incapacitation distribution will have some deterrent effect. Presumably,
the deterrence distribution will produce greater deterrence than the inca-
pacitation distribution, but its actual deterrence advantage is not mea-
sured by its total deterrent effect but rather by the extent of its greater
deterrent effect over that inherent in the incapacitation distribution.
(By the same token, the incapacitation value of an incapacitation distri-
bution as compared to deterrence distribution is not its full incapacita-
tive effect, but only its incapacitative effect beyond the incapacitative
effect inherent in a deterrent distribution.)
This comparative point has special implications for deterrence when
compared to a desert distribution. Most people see value in having a
criminal justice system that does justice, either for instrumentalist or
92 distributive principles of criminal law

deontological reasons, or both.163 More on this in Chapters 7 and 8. The

point of advocates for a deterrence-based distribution is not that doing
justice has no value but that crime reduction through precisely adjusted
deterrent punishments has a greater value. Deterrent advocates would
concede, presumably, that a desert distribution of punishment would
have some deterrent effect. To prefer a deterrence distribution to other
distributions, such as a deserts-based distribution, it must be shown that
the deterrence distribution provides greater efficient deterrence than that
inherent in a desert distribution.
But to provide greater deterrence than a desert distribution, the
deterrence distribution obviously must deviate from desert. That is, it can
only do better than desert where it does something different from desert.
However, there is reason to suspect that whenever deterrence deviates
from desert, in order to establish a reason to prefer it over desert, it faces
special difficulties in producing a net crime-control benefit, both because
it is just these deviation-from-desert cases that a deterrence distribution
is at its weakest and because the deviation from desert itself can be crimo-
genic. These are the subjects of Subsections B.3. and B.4. below.

3. The Problem of Deviating from Desert: Deterrence

at Its Worst When Doing Its Best
The special difficulties in producing a deterrent effect when deviating
from desert arise from several sources. First, citizens are quite unlikely to
know the content of the law if the law deviates from their own notions of
justice. Several studies have shown that people assume the law is as they
think it should be, which is according to their own collective notions of
justice. One study examined people’s knowledge of criminal law rules
that different states formulated differently. Each state in the study took
the minority view on at least one of the rules. The study found that citi-
zens in all of the states had generally the same belief as to the existing
legal rule, thus were generally ignorant of their state’s position on the law.
Interestingly, they did not always think the rule was that of the majority
view. Their belief in the rule was better predicted by their view about

163 See Paul H. Robinson & Michael T. Cahill, Law Without Justice: How and Why
Criminal Law Deliberately Sacrifices Justice 16 (Oxford 2003).
 Deterrence as a Distributive Principle 93

what the rule should be than by the actual content of the law.164 Other
studies have come to a similar conclusion.165
As this makes painfully clear, just making the desert-deviation rule
known to those whose behavior it is designed to control becomes a spe-
cial task for those who seek to manipulate behavior by deterrence-driven
changes in the laws. Because people assume the law is as they think it
should be, according to their perceptions of shared intuitions of justice, it
is in the deviation cases that criminal law has its greatest difficulty in
conveying its rule, for it is in the deviation cases where the legal system
must affirmatively change the community’s existing contrary assumption
about what the law provides. Yet it is rare that the law makes the needed
special effort to bring the law’s nonintuitive rule into the community
consciousness.
Further, it is the deviation-from-desert cases in which the system’s
deterrence-based rules are least likely to be honored during criminal jus-
tice adjudication. This is so because those who take the various discre-
tionary roles within the criminal justice system are likely to have the same
intuitions about justice as the other members of the community and are
likely to commonly allow those intuitions to influence their decisions.
Thus, the exercise of discretion by police, prosecutors, judges, and juries,
including the operation of jury nullification, will commonly subvert the
deviation rule, thus confounding the deterrence program and confusing
the deterrent message. Juries may refuse to convict a person, even if the
legal rules would seem to call for it, if the jurors believe it would be unjust
to do so.166 Prosecutors may similarly exercise discretion in subversion of
rules that produce what they see as an unjust result. Judges, by exercising

164 Darley, Carlsmith & Robinson, The Ex Ante Function of the Criminal Law, supra note
18, at 701.
165 In another study, in a survey of New Jersey citizens, it was found that they perceived
that the morally appropriate penalty for attempts at crimes was an increasing prison
sentence the nearer the perpetrator came to committing the crime. But even an
attempt that came in “dangerous proximity” to the completed crime was penalized
less that the completed crime. And when asked about the laws of the state in which
they lived, they reported that those laws essentially matched their moral intuitions.
But they were badly wrong. New Jersey is a Model Penal Code state that grades an
attempt at a crime that goes past a substantial step toward its completion as heavily as
it grades the completion of the crime. John Darley, Catherine Sanderson & Peter
LaMantia, Community Standards for Defining Attempt: Inconsistencies With the
Model Penal Code, 39 American Behavioral Scientist 405 (1996).
166 Irwin A. Horowitz, The Effect of Jury Nullification Instructions on Verdicts and Jury
Functioning in Criminal Trials, 9 Law and Human Behavior 25 (1985).
94 distributive principles of criminal law

sentencing discretion or approving of lenient plea bargains, also may

subvert the deterrence-based system’s rule, moving in the direction of
justice considerations. So if it is these adjudication decisions that the
deterrence theorist is counting on to perform the needed deterrence-rule
re-education task, the hope seems a vain one. Decision makers are often
likely to follow their own intuitions of justice and ignore the law’s con-
trary rule or at least look for ways to minimize the rule’s effect. And this
kind of distortion in application means that case dispositions often
obfuscate rather than clarify the deterrence-based legal rule sought to be
conveyed.
It might be thought that desert advocates should applaud these pro-
cesses that move the system toward desert. The problem is, however, that
the exercise of this sort of subversion is likely to be uneven. Some sen-
tencing judges will be influenced by justice considerations and may sub-
vert the unjust rule. Yet, recall, for example, the McCarty case cited earlier,
in which the judge, specifically to deter others from fleeing police, gave a
strikingly high sentence to a person entangled in one of the more
far-reaching construals of the felony-murder rule.
To generalize this, juries, prosecutors, and judges may deal more leni-
ently with offenders who are more attractive,167 racially matched to the
jurors,168 more capable of mustering legal resources to defend themselves
or who are otherwise advantaged in public opinion. And, on the other
side of the coin, it is also possible for the justice system to accuse and
convict those who are regarded as deviants within the community for
crimes for which others would not be prosecuted. So one problem with
the “under the table” intrusions of justice into a deterrence-based legal
system is the unevenness with which it may occur, with the disparity in
application creating its own form of injustice.
Another difficulty for the deterrence program in deviating from
desert is this: To the extent that the threat of official punishment stems
from a legal rule that people perceive as unjust, the offender may dis-
count the threat of punishment in the belief that, no matter what the law
on the books says, the lawyers, judges, and jurors in the system would not

167 John Clark, The Social Psychology of Jury Nullification, 24 Law and Psychology
Review 39 (2000).
168 Erick L. Hill & Jeffrey E. Pfeifer, Nullification Instructions and Juror Guilt Ratings: An
Examination of Modern Racism, 16 Contemporary Social Psychology 6 (1992).
 Deterrence as a Distributive Principle 95

in fact be so unjust as to actually enforce the rule as written.169 They may

assume that the system will “slip” to some extent, thus the formal threat
must be accordingly discounted.
A final problem with deterrence in deviation cases is that its work-
ings often need to be disguised. If the judge is applying justice consider-
ations in cases in which the deterrence-based legal rules dictate another
outcome, then the judge’s case dispositions and written explanations are
likely to be exercises in obfuscation rather than clarity. This is likely to not
only muddle the deterrence message but to also generate contempt for
legal rulings, which can have a long-term crimogenic effect. (More on
this below and in Chapter 8.)

4. The Problem of Offsetting Crimogenic Effect:

The Utility of Desert
The difficulty for deterrence is not only that it will have a difficult time
getting a deterrent effect in the cases of deviation from desert—the only
cases by which it can show greater deterrent effect than that inherent in a
desert distribution—but also that, even if it can produce a greater deter-
rent effect, its deviation from desert may produce crime-control costs
that outweigh the crime-control benefits of its added deterrent effect.
The bulk of the discussion of this point must wait until Chapter 8, which,
together with Chapter 7, looks closely at desert as a distributive principle.
However, to show how these points can be relevant to the assessment of
deterrence as a distributive principle, a thumbnail sketch of those argu-
ments are included here. The central point offered is this: by intentionally
and regularly doing injustice and failing to do justice in the community’s
view, a deterrence principle can reduce the system’s crime-control effec-
tiveness. Those crime-control costs arise from a variety of sources.

169 See, e.g., Irwin A. Horowitz, Jury Nullification: The Impact of Judicial Instructions,
Arguments, and Challenges on Jury Decision Making, 12 Law & Hum. Behav. 439
(1988) (finding that juries that are informed of the possibility of nullification are
more likely to acquit a sympathetic defendant); Michael Kades, Exercising Discretion:
A Case Study of Prosecutorial Discretion in the Wisconsin Department of Justice, 25
Am. J. Crim. L. 115 (1997); Robert A. Weninger, Factors Affecting the Prosecution of
Rape: A Case Study of Travis County, Texas, 64 Va. L. Rev. 357 (1978); Donna M.
Bishop & Charles E. Frazier, Transfer of Juveniles to Criminal Court: A Case Study
and Analysis of Prosecutorial Waiver, 5 Notre Dame J.L. Ethics & Pub. Pol’y 281
(1991).
96 distributive principles of criminal law

Deviating from a community’s intuitions of justice can inspire resis-

tance and subversion among participants—juries, judges, prosecutors,
and offenders—where effective criminal justice depends upon acquies-
cence and cooperation (a broader form of the argument in Section B.3.
above). Relatedly, some of the system’s power to control conduct derives
from its potential to stigmatize violators. With some persons this is a
more powerful, yet essentially cost-free mechanism, than the system’s
official sanction. Yet the system’s ability to stigmatize depends upon it
having moral credibility with the community; for a violation to trigger
stigmatization, the law must have earned a reputation for accurately
assessing what violations do and do not deserve condemnation. Liability
and punishment rules that deviate from a community’s shared intuitions
of justice undermine that reputation.
The system’s intentional and regular deviations from desert also
undermine efficient crime control because they limit law’s access to one
of the most powerful forces for gaining compliance: social influence. The
greatest power to gain compliance with society’s rules of prescribed con-
duct may lie not in the threat of official criminal sanction but rather in
the influence of the intertwined forces of social and individual moral
control. The networks of interpersonal relationships in which people find
themselves, the social norms and prohibitions shared among those rela-
tionships and transmitted through those social networks, and the inter-
nalization by individuals of those norms and moral precepts.
The law is not irrelevant to these social and personal forces. Criminal
law, in particular, plays a central role in creating and maintaining the
social consensus necessary for sustaining moral norms. In fact, in a soci-
ety as diverse as ours, the criminal law may be the only society-wide
mechanism that transcends cultural and ethnic differences. Thus, the
criminal law’s most important real-world effect may be its ability to assist
in the building, shaping, and maintaining of these norms and moral
principles. It can contribute to and harness the compliance-producing
power of interpersonal relationships and personal morality. Nevertheless,
a criminal justice system that intentionally and regularly does injustice
and fails to do justice diminishes its moral credibility with the commu-
nity and thereby its ability to influence conduct by shaping these power-
ful norms.
The criminal law also can effect gaining compliance with its com-
mands through another mechanism. If it earns a reputation as a reliable
statement of what the community perceives as condemnable, people are
 Deterrence as a Distributive Principle 97

more likely to defer to its commands as morally authoritative in those

borderline cases in which the propriety of certain conduct is unsettled or
ambiguous in the mind of the actor. The importance of this role should
not be underestimated. In a society with the complex interdependencies
characteristic of ours, an apparently harmless action can have destructive
consequences. When the action is criminalized by the legal system, one
would want the citizen to “respect the law” in such an instance even
though he or she does not immediately intuit why that action is banned.
Such deference will be facilitated if citizens are disposed to believe
that the law is an accurate guide to appropriate prudential and moral
behavior.
The extent of the criminal law’s effectiveness in all these respects—in
avoiding resistance and subversion of an unjust system; in bringing the
power of stigmatization to bear; in facilitating, communicating, and
maintaining societal consensus on what is and is not condemnable; and
in gaining compliance in borderline cases through deference to its moral
authority—depends to a great extent on the degree to which the criminal
law has earned moral credibility with the citizens governed by it. Thus,
the criminal law’s moral credibility is essential to effective crime control
and is enhanced if the distribution of criminal liability is perceived as
“doing justice,” that is, if it assigns liability and punishment in ways that
the community perceives as consistent with their shared intuitions of jus-
tice. Conversely, the system’s moral credibility, and therefore its crime
control effectiveness, is undermined by a distribution of liability that
deviates from community perceptions of just desert.
To summarize, a deterrence-based distribution potentially can forfeit
any crime-control gains when that distribution undermines the system’s
moral credibility with the community it governs. That is, even if one
assumes for the sake of argument that there would be some greater deter-
rent effect of a deterrence-based distribution of punishment over a desert-
based distribution of punishment, one would still question whether this
marginal benefit exceeds the loses that the use of a deterrence-based
system would incur. When combined with the problems of unavailable
information and complexity discussed above, one might conclude that
there is too much danger and too little payoff in a deterrence distributive
principle to justify its adoption.