Retributivism and Over-Punishment Douglas Husak

RETRIBUTIVISM AND OVER-PUNISHMENT
Douglas Husak
Introduction
Lately it has become a commonplace to complain about the injustice of mass incarceration. I
share the sentiment that this phenomenon has been an injustice. But it also has become orthodoxy to
allege that the acceptance of a retributive penal philosophy has been one of the chief factors that has
brought about mass incarceration in the first place.1 The mechanisms through which retributivists are
said to merit blame for this state of affairs are generally unspecified.2 To laypersons, retributivism is
nearly synonymous with a willingness to punish excessively. To academics, the details of the theory
itself are sometimes alleged to be the culprit.3 On other occasions, the claim is not that retributivism
per se is responsible, but that the theory is too easily co-opted by those who seek to inflict harsh
treatment.4 On still other occasions, retributivism is said to be implicated inasmuch as it is unable to
offer a persuasive critique of our unacceptable rates of incarceration---which a normative theory of
punishment should have the resources to be able to do.5
Not only have retributivists been held responsible for causing our proclivity to incarcerate too
much, they also are accused of being apt to derail any progress that might be made in the future.
Rachel Barkow is among a number of contemporary theorists to recommend several practical reforms
that would help to make existing systems of criminal justice more rational and cost-effective. According
to Barkow, a good deal of imprisonment could be withheld without jeopardizing public safety. An
animating assumption of her approach is that the citizenry is receptive to such proposals. But this
assumption, as she is aware, may not be correct, and she worries about the potential of retributive
thinking to scuttle her reforms. She concludes by writing: “The arguments in this book are premised on
the idea that the public is primarily concerned with public safety as the goal in setting criminal justice
policies. It is entirely possible that a significant segment of the public is willing to sacrifice public safety
1
James Q. Whitman is among the most outspoken voices for this allegation. See his “A Plea Against
Retributivism,” 7 Buffalo Criminal Law Review 85 (2003). Similar allegations had been expressed in countless
places. See David Garland: The Culture of Control (Oxford: Oxford University Press, 2001); John Braithwaith and
Philip Petit: Not Just Deserts (Oxford: Oxford University Press, 1990); and Peter Ramsay: “A Democratic Theory of
Imprisonmnt,” in A.Dzur, Ian Loader, and R. Sparks, eds., Democratic Theory and Mass Incarceration (Oxford:
Oxford University Press, 2016), Chapter Five; and David Hayes: Confronting Penal Excess (Oxford: Hart Pub. Co.,
2019) .
2
For a useful analysis, see Chad Flanders: “Retribution and Reform,” 70 Maryland Law Review 8 (2010).
3
See Edward Rubin: “Just Say No to Retribution,” 7 Buffalo Criminal Law Review 17 (2003).
4
Whitman, op.cit. Note 1, pp.91-93.
5
See Vincent Chiao: Criminal Law in the Age of the Administrative State (Oxford: Oxford University Press, 2019),
esp. Chapter 4.
Electronic copy available at: https://ssrn.com/abstract=3699951

for what it believes to be retributive justice---giving people what they deserve.”6 At least Barkow does
not hold retributivists at fault for causing the crisis. As she must realize, the epidemic in rates of
incarceration coincided largely with worries about public safety that were trenchant when crime rates
were high. Still, it is fair to say that she fears retributivism to be a potential impediment to progress.
As a self-proclaimed retributivist, I find these allegations to be troubling and unwarranted.7 The

point of this paper is to take steps to rebut them. Although I can hardly speak for all retributivists, I am
sure I speak for most. We are just as dismayed by the size and scale of our criminal justice system as
non-retributivists. To be sure, our favorite examples of our proclivity to over-punish tend to reflect a
liberal ideology that wonders why blue-collar criminals, for example, have suffered in contrast to their
white-collar counterparts.8 Despite these differences of emphasis, I doubt that retributivists have done
much to contribute to our current predicament. In fact, I believe it is more accurate to state that the
punishment theories produced by academics and the punishment policies implemented by politicians
bear little relation. Theory and practice have tended to march in different directions for a very long
time---perhaps for as long as fifty years.9 For better or worse, I detect little influence between academic
inquiry and real-world trends, and the gap between the two seems to be widening rather than
narrowing. Legal philosophers claim too much credit when they profess to have had a significant
impact, either positive or negative, on the actual shape of criminal justice institutions. Even so, I hope it
is useful to address this criticism of retributivism on its own terms. The key to my endeavor is not to
reject the intelligibility of desert altogether---as some prominent philosophers have done---but to
present a variety of grounds on which to conclude that fewer persons deserve punishment than positive
law inflicts.10 And a good many of the persons who do deserve punishment deserve less of it.
Progress in reducing the size of our prison population sometimes comes from unanticipated
places. The recent surge in criminal justice reform led by the “Black Lives Matter” movement is one
prominent source. The ongoing spread of the coronavirus in prison is another. The latter has done
more to accelerate the release of inmates in the United States (as well as in much of the rest of the
world) than any arguments ever advanced by legal philosophers or criminologists. Whether this
movement facilitates public safety is debatable; many of the prisoners who have been released are
homeless and likely to wind up in gatherings where the virus is even more rampant than in prison. No
jobs are waiting for them. Moreover, early release has led to a predictable backlash from victims who
were not even consulted and object that justice has not been done. Criminal justice reforms may even
6
Rachel Elise Barkow: Prisoners of Politics: Breaking the Cycle of Mass Incarceration (Cambridge: Belknap of
Harvard University Press, 2019), p.205.
7
Of course, I am not the first retributivist to defend the theory from charges of over-punishment. One prominent
line of defense I do not discuss is that those committed to punishing in accordance with desert operate under
conditions of uncertainty, and the evils of mistakenly punishing too little pale in comparison to the evils of
mistakenly punishing too much. See, for example, George Schedler: “Retributivism and Fallible Systems of
Punishment,” 30 Criminal Justice Ethics 240 (2011); and Göran Duus-Otterström: “Why Retributivists Should
Endorse Leniency in Punishment,” 32 Law and Philosophy 459 (2013).
8
See Benjamin Levin: “The Consensus Myth in Criminal Justice Reform,” 117 Michigan Law Review 259 (2018).
9
See Michael Tonry: “Punishment Theory and Policy,” (forthcoming).
10
Those who reject (negative) desert altogether include Derek Parfit: On What Matters (Oxford: Oxford University
Press, 2011); and Victor Tadros: The Ends of Harm (Oxford: Oxford University Press, 2011).

have helped to fuel the troublesome spike in violence (especially murders) in the summer of 2020.11
Public safety and expressive values apart, however, this experiment should be welcomed by
retributivists to the extent that (1) many and perhaps most of the released prisoners were convicted of
non-violent crimes, and (2) non-violent crimes are less serious, ceteris paribus, than violent crimes and
thus deserving of less severe punishments pursuant to the principle of proportionality. Both of these
propositions are probably true, but require empirical evidence and normative support. Reformers will
eagerly track whether and to what extent this unprecedented development affects any of the goods said
to be produced by incarceration, most notably public safety.
We can hardly rely on a crisis of public health to fuel a de-incarceration movement.

Philosophers have something to contribute. Conceptual uncertainty about the nature of retributivism
has helped to confuse the issue I propose to explore. In what follows, I begin by making four conceptual
points about retributivism. If I am correct, retributivism comes in countless flavors, and the particular
variety to which I am most attracted can be applied to show why some punishments should be less
severe than those presently imposed in the real world of penal justice. But conceptual analysis takes us
only so far. In the main two parts of this paper, I argue that many persons deserve less punishment than
our legal system currently inflicts. Reflection about what conduct should constitute an offense as well as
thought about whether perpetrators should be afforded a complete or partial defense reveals
retributivism to be less punitive than conventional wisdom would suggest. Since I have made something
of a career supporting these conclusions, I will draw extensively from my previous work. Although few
of them are new, I hope it is worthwhile to collect several of the most important considerations in a
single place in order to gain a sense of the overall weight of the many desert-based reasons to withhold
liability and lessen punishment. If my arguments are persuasive, I conclude that retributivism can
actually be a small part of the solution rather than a major source of our current problem.
I: Four Conceptual Points

I begin with four (mostly) conceptual points that do much to undermine the charge that a
retributive penal philosophy has been a significant factor contributing to mass incarceration. Those
philosophers enamored with analysis may find these points sufficient to establish my case. Even
without substantive arguments that purport to show many sentences to be undeservedly harsh---which
I offer in Parts II and III---I hope it is clear that retributivists should not be faulted for causing the
unacceptably high rates of imprisonment from which we presently suffer.
First and most obviously, the retributive theory itself needs to be clarified. Much of the
plausibility of the supposition that retributivism fuels mass incarceration is derived from a defective
characterization of its underlying nature. As I understand it, retributivism is not really the name of a
11
Police Commissioner Dermot F. Shea has linked the significant rise in shootings to the release of inmates from
Rikers Island because of measures to limit the coronavirus and the adoption of new laws to limit the use of bail.
Predictably, reactions to this allegations divide along partisan lines. See Ashley Southall: “New York Police Face
Scrutiny as Shootings Soar and Arrests Drop,” New York Times (July 17, 2020), p.A1.

particular theory of punishment any more than liberalism or conservatism is the name of a particular
political ideology. Instead, it refers to a tradition or a group of theories that share some loose
similarities.12 Commentators have long recognized that these similarities are hard to capture.13 Most
generally, however, this tradition affords a central and indispensable place to desert (and, perhaps even
more importantly, to its absence) in its account of whether and under what conditions the state is
justified in punishing offenders.14 This description is deliberately vague in order to encompass a wide
variety of rival positions. Retributivists can and do disagree about what desert is, how it figures in the
explanation of why penal sanctions are justified, when theories that do not explicitly mention it invoke
surrogates or proxies for desert, what it is about criminal behavior that makes persons deserving of
punishment, and a host of additional matters. These quarrels among retributivists can be every bit as
heated as those between retributivists and philosophers who presuppose an entirely different
normative framework.
The view that retributivism affords a central and indispensable place to desert must be
contrasted from the view that retributivism relies exclusively on desert in its attempt to justify
punishment. The latter view is typically attributed to Michael Moore, probably the world’s most well-
known and distinguished retributivist. According to Moore, “the distinctive aspect of retributivism is
that the moral desert of an offender is a sufficient reason to punish him or her.”15 Although some
retributivists follow Moore on this matter,16 I am sure that this definition has been quoted more
frequently by foes than by friends of retributivism. Even on this account, however, the connection
between retributivism and mass incarceration is obscure---as Moore himself takes pains to emphasize in
demonstrating his commitment to liberalism.17 But the supposition that retributivists care only about
desert in their justification of punishment fuels the temptation to believe that whatever considerations
show mass incarceration to be objectionable must be antithetical to the retributive tradition. The better
position---which allows desert to play any number of roles even though it is central and indispensable---
is obviously more conducive to pluralism about the justification of punishment.18 On my view, which I
regard as a version of retributivism, the criminal law performs several legitimate normative functions in
addition to implementing a principle of retributive justice that assigns value to treating offenders as they
12
See Douglas Husak: “Retributivism in Extremis,” 32 Law and Philosophy 3 (2013).
13
See C.L. Ten: Crime, Guilt, and Punishment (Oxford: Clarendon Press, 1987), esp. p.87. More recently, see Alec
Walen: “Retributive Justice,” Stanford Online Encyclopedia of Philosophy.
14
“Retributivism without desert… is like Hamlet without the Prince of Denmark.” Hugo Bedau: “Retribution and
the Theory of Punishment,” 75 Journal of Philosophy 601, 608 (1978) (emphasis in original).
15
Michael S. Moore: Placing Blame: A General Theory of the Criminal Law (Oxford: Oxford University Press, 1997),
p.88.
16
Some retributive theories---such as those that make culpability sufficient for deserved punishment without an
independent requirement of wrongdoing---have the potential to expand the scope of punishment radically. See
Larry Alexander ad Kimberly Kessler Ferzan: Reflections on Crime and Culpability (Cambridge: Cambridge
University Press, 2018).
17
In particular, see Michael S. Moore: “Liberty’s Constraints on What Should Be Criminalized,” in R.A. Duff, et.al.,
eds.: Criminalization: The Political Morality of the Criminal Law (Oxford: Oxford University Press, 2014), p.182.
18
See John Gardner: “The Functions and Justifications of Criminal Law and Punishment,” in John Gardner, ed,:
Offences and Defences (Oxford: Oxford University Press, 2007), esp. p.203. See also Mitchell N. Berman:
“Proportionality’s Functions and Its Relata,” Criminal Law and Philosophy (forthcoming).

deserve.19 Retributivists should not be reluctant to draw from any of these additional functions to lodge
their protest against mass incarceration.20
My second point is closely related to the first. Retributivism is a tradition that emphasizes the
role of desert, but a gap exists between the premise that a given punishment is deserved and the
conclusion that it should be imposed all-things-considered. This gap can be huge. Desert is only one of
several components in a theory of sentencing, and may not even be the most important. In a series of
articles, I have asked “Why punish the deserving?”21 In my judgment, a host of considerations are
needed to bridge the foregoing gap, nearly all of which are consequentialist. Among these several
factors, crime prevention looms the largest in helping to justify the infliction of whatever punishment is
deserved. If a given punitive sanction is not needed to increase prevention---or, even worse, is
counterproductive in achieving that end---retributivists can be perfectly consistent in recommending
that it be withheld. Retributivists can be sensitive, for example, to whether punishment costs too much
money, empowers authorities to abuse their power, too often convicts the innocent, or exacerbates
racial tensions. It was always fantastic to suppose that something as awful as tokens of punishment
could be justified irrespective of their consequences.22
Third, retributivism itself has no implications about the mode or kind of punishment that should
be inflicted.23 Let me elaborate. I assume that retributivists attach special significance to a principle of
proportionality. This principle is notoriously difficult to apply and is hard to formulate precisely.24 As I
construe it, however, proportionality requires (ceteris paribus) that the severity of the punishment that
is deserved should be a function of the seriousness of the offense that has been committed. Once the
quantum of punishment a given defendant deserves has (somehow) been specified, however, desert has
no further implications for the particular form it should take. Defendants who have committed equally
serious crimes may each receive a different type of punishment, as long as these modes are comparable
in severity. If parity can somehow be established between the many alternative kinds of sanctions that
are available, retributivists have no basis to prefer one to another on grounds of desert. Since they have
no special allegiance to incarceration as the default mode of punishment, retributivists can join the
growing chorus of penal theorists who advocate prison minimalism.25 They can favor banishment, exile,
19
Douglas Husak: “The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law,” 23 New Criminal Law
Review 27 (2020).
20
And they have done so. Andrew von Hirsch, perhaps the foremost architect of a “just deserts” model of
sentencing, has long argued that retributivists need not be indifferent about rates of incarceration. See Andrew
von Hirsch: “The Sentencing Commissions Functions,” in Andrew von Hirsch, Kay A. Knapp, and Michael Tonry,
eds.: The Sentencing Commission and its Guidelines (Boston: Northeastern University Press, 1987), p.3, esp.p.13.
21
Douglas Husak: “Why Punish the Deserving?” in Douglas Husak, ed.: The Philosophy of Criminal Law: Selected
Essays (Oxford: Oxford University Press, 2010), p.339.
22
See Tadros: op.cit. Note 10.
23
See Douglas Husak: “Kinds of Punishment,” in Heidi M. Hurd, ed.: Moral Puzzles and Legal Perplexities: Essays
on the Influence of Larry Alexander (Cambridge: Cambridge University Press, 2019), p.23.
24
See Douglas Husak: “The Metric of Punishment Severity: A Puzzle for the Principle of Proportionality,” in
Michael Tonry, ed.: Of One-Eyed and Toothless Miscreants: Making the Punishment Fit the Crime? (Oxford: Oxford
University Press, 2019), p.97.
25
For a discussion of the abolitionist movement, see “Developments in the Law – Prison Abolition,” 132 Harvard
Law Review 1568 (2019).

corporal punishment, home confinement, a monetary fine, or whatever else they find defensible on
grounds independent of desert. Perhaps they can even go so far as to question whether any form of
hard treatment or deprivation is always needed to supplement the condemnation and stigmatization
that punishment necessarily includes.26 The only non-trivial constraint that emerges from
proportionality is that the extent of any sanction that is deserved must be a function of the seriousness
of the crime that is committed. Once this condition is satisfied, however, retributivists can defer entirely
to consequentialists in selecting among the various options. If non-retributivists make a compelling case
against incarceration, retributivists are welcome to borrow their insights and join their crusade.
In fact, almost no retributivist explicitly tries to justify incarceration. Instead, their efforts are
aimed at justifying punishment. In both casual and scholarly thought, it is unfortunate that the latter is
so often equated with the former. Once they are distinguished, however, it becomes clear that
retributivists have almost nothing to say about whether a given offender merits imprisonment.27
Presumably, incarceration is a more severe type of sanction than any of the alternatives retributivists
would tend to allow. But how serious must a given crime be in order to merit incarceration? The
draftsmen of state and federal sentencing guidelines struggled with this issue in drawing the in/out line
(sometimes called the dispositional line) on their sentencing grids. Defendants who committed crimes
of greater seriousness than those along the in/out line became subject to imprisonment. But the exact
placement of this line cannot be specified with any confidence. This lack of precision is due largely to
the fact (as critics of retributivism never tire of pointing out) that assignments of cardinal proportionality
(unlike those of ordinal proportionality) are extremely difficult.28 Almost certainly, conventions
contribute to these assignments.29 If so, retributivists could bring about a reduction in incarceration
simply by adjusting the in/out line on the grids in their sentencing guidelines. Since nothing in their
theory dictates where this line should be drawn, nothing in their theory precludes them from drawing it
elsewhere.
These considerations lead me to suspect that commentators may be misguided to fixate

narrowly on incarceration (massive or otherwise). This fixation would clearly be a mistake if critics only
manage to replace it with an alternative that is as bad or worse. Imprisonment may be awful, but we
should not tolerate a substitute that is equally detrimental.30 Arguably, then, our target should be on
the scope and scale of punishment rather than on that of incarceration. Most of the offenses for which
persons are arrested and prosecuted do not result in sentences of imprisonment, but they should not be
26
See Douglas Husak: “What Do Criminals Deserve?” in Kimberly Kessler Ferzan and Stephen J. Morse: Legal,
Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Oxford: Oxford University Press, 2016), p.49.
27
See Rafi Reznik: “Retributive Abolition,” 24 Berkeley Journal of Criminal Law (forthcoming, 2020). For a
discussion of whether this failure to connect academic scholarship about punishment with real-world penal
institutions is problematic, see Lisa Kerr: “How the Prison is a Black Box in Punishment Theory,” 69 University of
Toronto Law Journal 85 (2019).
28
See Nicola Lacey and Hanna Pickard: “The Chimera of Proportionality: Institutionalising Limits on Punishment in
Contemporary Social and Political Systems,” 78 Modern Law Review 216 (2015).
29
See Andreas von Hirsch: Deserved Criminal Sentences (Oxford: Hart Pub. Co., 2017), esp. pp.59-60.
30
Some of the options presently on the table may not improve on the status quo. See some of the options
discussed in Hadassa Noorda: “Exprisonment: Deprivations of Liberty on the Street and at Home,” (forthcoming).

allowed to fly beneath our radar screen because they cannot land defendants in prison.31 Penal
theorists have begun to pay more attention to the injustice of the lesser punishments imposed for
misdemeanors and other non-serious offenses.32 According to Alexandra Natapoff, “while mass
incarceration has become recognized as a multi-billion dollar dehumanizing debacle, it turns out that the
misdemeanor behemoth does quieter damage on an even grander scale.”33 Thus I believe that over-
punishment, not mass incarceration, is just as appropriate a target for reformers.
Finally and perhaps most importantly, no one can assess the extent to which a given penal
philosophy should be faulted for fueling rates of incarceration without a baseline of comparison. I do
not mean merely that we need to know what rate of incarceration is optimal before we can be sure that
we have too much of it. Although this general point is correct, I am willing to concede that our level of
incarceration is too high.34 Instead, I mean that we need some assurance that a plausible alternative
attempt to justify punishment can do better on this score than the retributive view under attack.35 Of
course, retributivists support more severe sanctions than those who would abolish punitive institutions
altogether. Short of punishment abolitionism, however, sentences must be imposed pursuant to some
normative rationale, however pluralistic or complex.36 It is one thing to criticize retributivism, and quite
another to defend a viable alternative that can do better. It remains to be seen whether any theory of
punishment and sentencing can be more successful in reducing the size and scope of punishment while
satisfying most of our normative intuitions.37 It is well beyond my purview to canvass the viable options,
but a cursory reminder of the central challenge can be summarized in a single paragraph.
Consider, for example, a simple-minded consequentialist theory of punishment that does not
include desert. Since the time of Jeremy Bentham, it is telling that no philosopher comes to mind who
has explicated the details of such a theory.38 The obvious difficulty for a consequentialist is familiar to
every student in introductory ethics. If the effects of punishing a given person are sufficiently good, why
is it relevant whether or not she has committed an offense? Is past misbehavior merely defeasible
31
See Douglas Husak: “Criminal Law at the Margins,” Criminal Law and Philosophy (forthcoming, 2020).
32
See Issa Kohler-Hausmann: Misdemeanorland: Criminal Courts and Social Control in an Era of Broken Windows
Policing (Princeton: Princeton University Press, 2018).
33
Alexandra Natapoff: Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent
and Makes America More Unequal (New York: Basic Books, 2018), p.3.
34
No one should take this conclusion for granted in assessing public opinion. Despite an apparent general
consensus that punishments are too severe across the board, sentencing bills that would allow early release of
violent offenders have failed in all of the 18 state legislatures in which they have been introduced. See Campbell
Robertson: “A Push to Reduce Prison Time, Even for Murder,” The New York Times (July 19, 2019), p.A1.
35
An intriguing alternative is the “duty view,” defended by Tadros in op.cit. Note 10. Even if we take the duty view
to provide a plausible justification of punishment, however, I argue that it may be conducive to producing more
rather than less punishment in Douglas Husak: “Wrongs, Crimes, and Criminalization,” 13 Criminal Law and
Philosophy 393 (2019).
36
See Douglas Husak: “Why Legal Philosophers (Including Retributivists) Should be Less Resistant to Risk-Based
Sentencing,” in Julian V, Roberts, J.W.de Keijser and Jesper Ryberg, eds.: Predictive Sentencing: Normative and
Empirical Perspectives (Oxford: Hart Pub. Co., 2019), p.33.
37
See Alice Ristroph: “How (Not) to Thinks Like a Punisher,” 61 Florida Law Review 727 (2009).
38
Perhaps there are exceptions. See Larry Laudan: The Law’s Flaws: Rethinking Trials and Errors? (London: College
Publications, 2016).

evidence of future dangerousness, or is it a necessary condition of justified punishment? In other words,
consequentialist theories seemingly sever the connection between crime and punishment. Much the
same problem resurfaces with rehabilitative theories. Are we really prepared to allow the indefinite
confinement of persons who would benefit from rehabilitation, even if they have done nothing wrong?
If I am correct, neither of these perspectives would seem to provide a workable recipe for reducing the
size and scope of our penal justice system. As bad as retributivism is said to be, its competitors may be
even worse. Of course, we cannot be sure until we scrutinize the details of a rival vision. At present,
however, few alternatives have been placed on the table for inspection. Most theorists seem content to
attack retributivism without specifying what should replace it.
I hope that quite a few philosophers regard the above conceptual points as sufficient to acquit
retributivism of the charge that it bears a significant degree of responsibility for the epidemic of mass
incarceration and over-punishment. But I do not want to rest my case on these four abstract claims
alone. Substantive arguments are also needed to bolster my position. We retributivists should seek to
show that a great deal of punishment is and has been undeserved. Full support for this conclusion,
however, would require nothing less than a comprehensive theory of desert. A systematic effort to
match punishment severity with crime seriousness, I hope, would reveal that sentences are too high
across the board. 39 If this case could be made, it might be appropriate to take a “second look” at some
of the more punitive sentences inflicted on persons who are presently incarcerated.40 Unfortunately,
however, neither I nor anyone else has such a comprehensive theory---as critics of retributivism are
fond of pointing out.41 Admittedly, this fact is something of an embarrassment. As my fourth and final
conceptual point suggests, however, we should not make too much of this difficulty. Just as
importantly, however, I believe this problem can be circumvented largely by relying on judgments of
comparative desert. Respondents tend to be far more confident that one offender deserves more or
less punishment than another than that they can identify a uniquely correct quantum of punishment a
given offender merits. Thus I believe that considerable progress can be made using desert-based
arguments to limit the size and scope of our penal justice system even without a comprehensive theory
that shows many offenders are punished with disproportionate severity.
II: Substantive Considerations: Offenses

As I have indicated, retributivists need not answer all questions about punishment by reference
to desert, and can invoke any number of additional considerations to argue against detrimental policies
such as mass incarceration and over-punishment. These additional considerations could well be the
most important in curtailing our punitive policies. Still, quite a bit of headway could be made simply by
ensuring that criminal liability and punishment conform to desert. One reason we have high rates of
39
See Christopher Heath Wellman: Rights Forfeiture and Punishment (New York: Oxford University Press, 2017),
esp. p.180.
40
See Michel Serota: “Second Looks and Criminal Legislation,” 17 Ohio State Journal of Criminal Law (forthcoming,
2020).
41
See Victor Tadros: Wrongs and Crimes (Oxford: Oxford University Press, 2016).

incarceration is not because so many persons deserve prison, but because we often (although not
always) punish in excess of desert.42 We can proceed on at least two fronts in the criminal law when
trying to show that the size and scale of penal justice would be reduced if desert were taken more
seriously. We could invoke considerations of desert to argue for a narrowing of the scope of offenses, or
we could do so to argue for an expansion in the extension of defenses.43 The first route is the more
familiar, but may not be the more effecacious. Although calls to repeal existing offenses are often
thought to be the more effective avenue to retard over-punishment, I have come to believe that their
capacity to do so has been exaggerated. Efforts to expand the scope of defenses may have as much or
more potential to combat mass incarceration and over-punishment.
Still, I begin with offenses. In previous work, I argued that Western countries in general and the
United States in particular are almost certainly guilty of overcrminalization.44 We punish conduct that
should not have been criminalized in the first place. As I indicated, a claim that we have too much of
something presupposes a baseline by reference to which we can decide when we have too little, too
much, or just the right amount of it. Many possible baselines could be employed. But I tried to be clear
that the most relevant baseline is normative, and that a normative theory of criminalization committed
to reducing the size and scale of the penal sanction is best construed to consist in several moral and
political constraints on the conduct that is eligible for criminalization and punishment. We
overcriminalize when one or more of these constraints are violated. In short, what I regard as the best
normative theory of whether and under what conditions a criminal offense is justified can be applied to
show that some (real or hypothetical) offenses should not have been enacted and that the persons who
commit them do not deserve to be punished.
This normative theory has attracted a fair amount of scholarly attention. In usual philosophical
fashion, quite a bit of this attention has been critical. I admit to misgivings about some of my claims. In
particular, I am uncertain whether it is wise to fixate so narrowly on the criminal law while neglecting
the several alternative means by which persons are effectively coerced without the threat of
punishment.45 Is the criminal law really so different in kind from other bodies of law? Nonetheless, I
remain mostly convinced of my original thesis. More to the point, I remain convinced that my
constraints can be applied to show some offenses to be unjustified. It is not enough to demonstrate
42
Occasionally, as in the domain of sexual offenses and white-collar criminality, desert-based considerations might
seemingly favor an expansion in the scale of the substantive criminal law. See Andrew Ashworth and Lucia Zedner:
“Preventive Orders: A Problem of Undercriminalization,” in R.A.Duff, et.al., eds.: The Boundaries of the Criminal
Law (Oxford: Oxford University Press, 2010), p.59. But I believe that concerns about over-punishment should be
applied here too. See Aya Gruber: “#MeToo and Mass Incarceration,” 22 Ohio State Journal of Criminal Law
(forthcoming, 2020).
43
I do not pretend that the contrast between offenses and defenses is always clear, as my subsequent discussion
of overinclusion and de minimis indicates.
44
Douglas Husak: Overcriminalization (Oxford: Oxford University Press, 2008). I do not discuss here some of the
worries about the substantive criminal law I described in 2008 – such as the excessive use of overlapping offenses
to induce defendants to plead guilty.
45
See Douglas Husak: “Reservations About Overcriminalization” 14 New Criminal Law Review 97 (2011). Recently,
this worry has been urged forcefully by Vincent Chiao: op.cit. note 5.

that some existing but outdated statutes fail the “laugh test” and should be repealed.46 If the goal is to
make a dent on incarceration and punishment, the offenses to be targeted must actually be enforced
with some degree of frequency. To this end, I made a concerted effort to apply my constraints to show
that proscriptions of the use and possession of drugs were unjustified.47 These offenses fail to satisfy
reasonable interpretations of what I call the wrongfulness constraint, the harm constraint, and almost
certainly fail to satisfy a good number of additional political constraints as well. The “drug war” was
never justifiable and should not have been launched in the first place. Although my principled attack on
the justifiability of drug offenses was fairly original and controversial when made, I now believe the
academic tide has turned and that relatively few scholars continue to defend these prohibitions.48 The
case against drug offenses (and marijuana in particular) is so compelling that commentators who aspire
to reduce the size of criminal justice institutions now liken this reform to picking “low-hanging fruit.”49
To be sure, little progress toward decriminalization can be detected in the real world apart from the
special case of marijuana, the least dangerous and most widely-used illicit drug.50 But the rationale for
punishing users of any substance remains incredibly thin.51
Still, a cautionary note is advisable when protests against mass incarceration and over-
punishment begin and end with calls to repeal drug offenses. Quite simply, the gains that would be
achieved by a radical transformation of our drug policy are not as significant as many commentators had
contended. The public had been led to believe that the change would be momentous. Michelle
Alexander had written “the impact of the drug war has been astounding. In less than thirty years, the
U.S. penal population exploded from around 300,000 to more than 2 million, with drug convictions
accounting for the majority of the increase.”52 President Barak Obama agreed.53 But a sophisticated
case to the contrary has been made by John Pfaff. He concludes that it is “difficult to defend the claim
that the war on drugs is the main driver of prison growth.”54 He alleges that “even setting every drug
offender free would cut our prison population by only about 16 percent,” leaving the United States with
46
Amusing books that ridicule the contents of criminal codes appear from time to time. Most recently, see Mike
Chase: How to Become a Federal Criminal (New York: Atria Books, 2019).
47
Douglas Husak: Drugs and Rights (Cambridge: Cambridge University Press, 1992).
48
To a great extent, drug reform has been fueled by awareness that possession offenses have been enforced most
vigorously against minorities. Although this argument has obvious appeal, I contend that the regime of drug
prohibition would be unjust even if its enforcement were racially neutral.
49
German Lopez: The Case for Marijuana Legalization,” Vox (November 14, 2018),
https://www.vox.com/identities/2018/8/20/17938392/marijuana-legalization-arrests-racism-violence-drug-cartels
50
Psychedelics may be next. See Kelly Burch: “Activists Want Legalization for Psychedelics,” The Fix (3/19/19),
https://www.thefix.com/activists-want-legalization-psychedelics
51
In my judgment, the most plausible defense construes drug proscriptions as a pretext for general crime-control
measures. See Douglas Husak: “Drug Proscriptions as Proxy Crimes,” 36 Law and Philosophy 345 (2017).
52
Michelle Alexander: The New Jim Crow (New York: The New Press, 2012), p.6.
53
“The real reason our prison population is so high [is because] we’ve also locked up more and more nonviolent
drug offenders than ever before, for longer than ever before.” Quoted in Gilad Edelman: “The Real Answer to
Mass Incarceration,” The New Yorker (July 17, 2015).
https://www.newyorker.com/news/news-desk/the-real-answer-to-mass-incarceration
54
John F. Pfaff: Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (New York:
Basic Books, 2017), p.23.
10

what still would be the highest rate of incarceration in the world.55 Even the racial composition of the
persons who are incarcerated would not be substantially altered if a truce on the drug war were
declared.56
I am almost entirely persuaded by Pfaff’s reasoning; my main bone of contention is his use of
the word “only”. A 16% decline in the prison population is approximately 300,000 persons---which Pfaff
himself admits to be “a huge number by any measure.”57 It is hard to think of any other desirable
change in the content of the substantive criminal law that would have a greater impact on the size of
the penal population. If we are committed to reducing overcriminalization and over-punishment, drug
policy is the most sensible place to begin. But Pfaff’s research is important for a different reason. He
contends that the single most important factor in causing the size of the prison population to mushroom
around 1980 is the decision by prosecutors to charge more frequently for offenses that no sensible
person would want to repeal. In addition, recent evidence indicates that the percentage of arrests that
result in jail terms is higher today than in recent years.58 As a result, further reduction in the number or
scope of penal statutes would be unlikely to have a significant impact. Although Pfaff’s analysis does not
hold retributivists responsible for causing mass incarceration, it would seem to place progress outside of
what a focus on criminalization might reasonably achieve. His analysis suggests that real headway in
curbing over-punishment must focus more on prosecutors and police and less on legislators.59
Nonetheless, it is worthwhile to consider whether there might be additional offenses that

impose liability on the non-deserving and thus should be repealed. To be sure, no example other than
drug crimes that has been enforced so vigorously has done nearly as much to contribute to the
incidence of incarceration. But some progress in reducing the severity of punishments could be
achieved by devising non-punitive means to deal with minor offenses (or “order-maintenance” or
“quality-of-life” offenses) for which many persons are currently arrested. In New York City, for example,
the most common offenses that result in arrest (excluding controlled substances violations) include theft
of services (most notably turnstile-jumping and other means of fare-evasion), minor assault (contact
that does not cause serious physical injury), petit larceny (usually shoplifting), trespass (often in public
housing facilities), and weapons possession (often a gravity knife rather than a firearm). A large residual
category includes disorderly person offenses such as loitering and public urination.60 “Vice” crimes, such
as prostitution, gambling and the like are also ripe for rethinking.61 And the criminal law might refrain
55
Id., p.35.
56
Id., p.46.
57
Id.
58
Vera Institute of Justice (August, 2019), https://www.vera.org/publications/gatekeepers-police-and-mass-
incarceration
59
See Emily Bazelon: Charged: The New Movement to Transform American Prosecution and End Mass
Incarceration (New York: Random House, 2019); and Andrew D. Leipold: “Is Mass Incarceration Inevitable?” 56
American Criminal Law Review 1579 (2019).
60
New York Department of Criminal Justice Services (DCJS), 1990 to 2015.
61
See Jim Laizel: Regulating Vice: Misguided Prohibitions and Realistic Controls (Cambridge: Cambridge University
Press, 2008).
11

from punishing offensive conduct that is not otherwise harmful.62 It would be hugely important to
defend a set of normative principles that govern what should be done to individuals who perpetrate
these relatively minor offenses. The casebooks adopted in standard courses in criminal law at the
nation’s law schools rarely so much as mention these behaviors. Nor have penal theorists invested
much thought to this matter, at least until recently.63 According to Issa Kohler-Hausmann, “no
philosophers or public intellectuals have, to my knowledge, offered deep rigorous thinking about what
justice demands in response to… low-level crimes.”64 I have come to believe that the problems of
fashioning an appropriate response to minor offenders are among the most difficult issues in all of
criminal justice. In truth, however, Kohler-Hausmann herself goes some distance toward answering
many of the novel questions she chides philosophers of criminal law for neglecting. More recently,
Antony Duff has done so as well. He embarks on a fascinating tour of what might be said for and against
several different ways to respond to minor public wrongs other than by criminalizing them. Duff’s
“partial, sketchy survey” includes the following six options: (a) do nothing; (b) restorative justice; (c)
non-governmental codes; (d) non-criminal regulation; (e) private law; and (f) preventive measures.65 If
any of these options should not be counted simply as alternative kinds of punitive measures,
considerable progress in reducing the scope and size of the criminal justice system could be achieved by
finding imaginative ways to deal with these quality-of-life crimes.66
And even though the harm constraint has come under heavy fire by contemporary legal
philosophers,67 among the best reasons to retain this limitation on the content of the substantive
criminal law is that its inclusion could prove to be helpful in reducing the reach of the punitive sanction.
Let me give just one example of a contemporary debate involving the harm constraint, admittedly more
relevant to academic legal philosophers than to policy-makers whose aspiration is to reduce the
incidence of punishment. Criminal theorists have long debated how the law should handle (so-called)
factually impossible attempts---roughly, cases in which the type of means a defendant employs to
complete a crime is so misconceived that it could not possibly have succeeded in the real world. No
mere attempt, by definition, causes the harm at which it aims. But liability for an unsuccessful attempt
might well be confined to situations in which the kind of causal chain employed by the defendant
unjustifiably and substantially increases the risk that harm will result. The best examples of factually
impossible attempts do not involve situations in which the defendant fires his gun but misses. Guns can
and do kill. Instead, the clearest examples of factually impossible attempts are those in which the
defendant tries to cause harm by sticking pins in a voodoo doll or by casting a magical spell. Only in a
62
See James Edwards: “No Offence,” in Kimberly Kessler Ferzan and Larry Alexander, eds.: The Palgrave Handbook
of Applied Ethics and Criminal Law (Palgrave 2019) ; A.P. Simester and Andreas von Hirsch: Crimes, Harms, and
Wrongs: On the Principles of Criminalisation (Oxford: Hart Pub.Co., 2011), esp. Part III.
63
For an additional exception, see Irene Oritseweyinmi Joe: "Rethinking Misdemeanor Neglect," 64 U.C.L.A. Law
Review 738 (2017).
64
Kohler-Hausmann: op.cit. Note 32, p.265.
65
R.A.Duff: The Realm of Criminal Law (Oxford: Oxford University Press, 2018), pp.280-292.
66
Consider the case of a Brooklyn man arrested 18 times for various violations on New York Subways, including
causing numerous delays by pulling emergency brakes on trains during rush hours. The optimal solution, if it is
possible to implement, is a ban on the use of the subway system. See Crime and Justice News (August 6, 2019)
https://thecrimereport.org/2019/08/06/nyc-subway-disrupter-arrested-18-times-freed-again/
67
Notably, see James Edwards: '”Harm Principles,” 20 Legal Theory 253 (2014).
12

possible world very distant from our own could such efforts succeed. Perhaps surprisingly, most legal
theorists appear to believe that liability and punishment are deserved in these situations.68 But a
reasonable interpretation of the harm constraint---that liability and punishment are deserved only when
defendants cause harm or substantially and unjustifiably increase the risk of harm----would suggest
otherwise. The harm constraint might be retained in a theory of criminalization precisely because it
precludes liability in this kind of case. And once it is retained, the harm constraint has the potential to
narrow the size and scope of criminal liability elsewhere. Or so it seems reasonable to hope.
Most importantly, however, only a re-examination of sentences for violent crimes can hope to
make major inroads in reducing the incidence of punishment.69 Why should this step be taken? A large
part of the rationale for punishing violent criminals less severely would depend on a critical
reassessment of the widespread assumption that violence itself is especially horrendous. The nature of
violence, of course, is hotly debated by courts and commentators.70 More to the point, however, why
should we concede that violent crimes represent a kind of offense for which incarceration or other
severe punishments are appropriate? Although these crimes obviously cause harm and probably satisfy
each of the plausible constraints a theory of criminalization should include, the application of these
constraints is helpful in raising questions that are relevant in challenging whether they are sufficiently
serious to require a severe punitive response. Is violence itself always or generally more wrongful than,
say, white collar crime? Does it cause more harm? Does the state have a stronger interest in preventing
it? Each of these questions awaits further study.71 I simply speculate that desert-based applications of
proportionality to crimes of violence would represent an important domain in which future reductions
in the quantum of punishment might be achieved.
III: Substantive Considerations: Defenses

When commentators set out to retard incarceration and punishment, it is hardly surprising that
they first think of narrowing the number and range of offenses. Yet expanding the scope of defenses
may hold even greater promise in achieving these objectives. I will discuss three contexts in which
desert-based arguments might bring about reductions in sentences. For at least three reasons,
however, it is nearly impossible to quantify the extent of the reductions that might be anticipated
through the avenues I explore. First, this determination depends partly on empirical conjectures that
are difficult to estimate. How many defendants really qualify for the defenses I examine? This question
is partly sensitive to how burdens of proof are assigned---a matter about which I have nothing to say
here. Second, courts may already take informal account of the defenses I mention. If the case for
complete or partial exculpation is really as powerful as I will suggest, one would expect knowledgeable
68
Even theorists who agree about little else favor liability and punishment in these cases. See Gideon Yaffe:
Attempts (Oxford: Oxford University Press, 20xx); and Larry Alexander Kimberly Kessler Ferzan: Crime and
Culpability (Cambridge: Cambridge University Press, 2009).
69
See Pfaff: op.cit. Note 54.
70
For a nice overview of the controversy, see https://www.everycrsreport.com/reports/R45220.html
71
See Alex Guerrero: (forthcoming).
13

sentencing authorities to have exercised whatever discretion they possess to reflect the significance of
the factors I describe.72 Finally, as I have indicated, my arguments are comparative. I will contend that
one defendant deserves less punishment than another who is similar in all relevant respects except for
the variable I isolate. But I confess to uncertainty about how to gauge the quantum of the reduction
that is deserved when these comparisons are made. Still, I suspect that quite a bit of progress can be
attained in reducing the scale of punishment if some or all of the following suggestions are
implemented. In any event, we must try. As Richard Frase has asked, “can we afford to renounce any
major sources of mitigation, given our inflated American penalty scales and overbroad criminal laws?”73
The first idea is perhaps the most radical, and probably has the greatest potential to achieve
impressive results. Elsewhere I have argued that defendants who are ignorant of law should be partly or
wholly exculpated.74 More precisely, a defendant who is ignorant that her conduct is morally wrongful
(and not merely that it is illegal) is almost always less culpable than one who is not. Since (ceteris
paribus) the severity of the punishment that is deserved should be a function of the seriousness of the
crime that is committed, and crime seriousness is partly a function of the culpability of the defendant, it
follows that the offender who is unaware that her conduct Is wrongful should generally be punished less
severely than another who commits the same offense but understands her conduct to be wrong.
My position rests on both intuitive and theoretical grounds. To be sure, intuitions about
different kinds of situation involving ignorance of a rule may turn out to vary, so it would be dangerous
to generalize too readily from any single case. Still, the following example is instructive and has received
a good deal of scholarly attention.75 Let me begin by stipulating what I regard as obvious: slavery is and
always has been an unjust institution and owning slaves is wrongful. Nonetheless, Hittites who lived
thirty centuries ago apparently had no moral qualms about enslaving captives caught in battle. Suppose
a slave-owner in some time and place realizes perfectly well that slavery is an immoral institution, but
cannot be bothered to do what she knows to be right because she cannot bring herself to do the hard
work her slaves perform on her plantation. How should we assess her blameworthiness relative to that
of the ancient Hittite who I again stipulate lacks the relevant moral knowledge? Reasonable minds can
and do disagree,76 but I hold the blameworthiness of slave-owners who know better to be significantly
greater than that of slave-owners who are morally ignorant. Arguably, the latter are not blameworthy
to any degree.
Of course, no one can hope to decide why knowledge that his conduct is wrongful makes one
person more deserving of blame and/or punishment than another who is ignorant without at least
implicitly invoking some general principles---or perhaps an entire theory---of responsibility. Legal
72
For some subtle thoughts, see Gabe Mendlow: “Divine Justice and the Library of Babel: Or, Was Al Capone
Really Punished for Tax Evasion?” 16 Ohio State Journal of Criminal Law (2018).
73
Richard S. Frase: “Recurring Policy Issues of Guidelines (and non-Guidelines) Sentencing: Risk Assessments,
Criminal History Enhancements, and the Enforcement of Release Conditions,” 26 Federal Sentencing Reporter 145,
151 (2014).
74
Douglas Husak: Ignorance of Law: A Philosophical Analysis (Oxford: Oxford University Press, 2015).
75
See Michael Slote: “Is Virtue Possible?” 42 Analysis 70 (1982).
76
For recent commentary that challenges my position, see Alex Guerrero: “Deliberation, Responsibility, and
Excusing Mistakes of Law,” 6 Jurisprudence 81 (2015).
14

philosophers should struggle to make this commitment explicit, as producing and applying such a theory
is the missing piece in nearly all normative investigations into the significance of ignorance of
wrongdoing. Without such a theory, we have only our intuitions on which to rely. Unfortunately, no
project in contemporary moral philosophy is more unsettled and divisive than that of defending a
general theory of responsibility.77 I hold that questions about whether a person is responsible for her
conduct should be resolved by invoking the same framework that shows why a person possesses the
capacity for responsibility in the first place. According to the position I accept, agents become eligible
for attributions of responsibility generally, and for a given act in particular, by possessing and being able
to exercise their capacity to be reason-responsive with respect to that act. Roughly, we become morally
blameworthy for wrongful conduct when our capacity to respond to moral reasons is intact, but we
utilize it incorrectly. When do we utilize our capacity to respond to moral reasons incorrectly?
According to the conception I am inclined to favor, deliberation is deficient in the way that supports
blameworthiness most clearly when agents respond incorrectly to the balance of moral reasons
according to their own lights. In these circumstances, agents know better than to commit the wrongful
act they have performed. When these agents commit wrongs, they merit blame rather than some other
response such as moral education.
I am not the first philosopher to argue that the class of wrongful actions for which persons are
fully morally responsible consists of those that deviate from the agent’s own subjective judgment of
what is best. Most notably, variations on this position have been elegantly defended by Gideon Rosen78
and Michael Zimmerman,79 and I readily acknowledge my debt to each of them. Neil Levy defends this
component of my view as follows: “It is only reasonable to demand that someone perform an action if
performing that action is something they can do rationally; that is, by means of a reasoning procedure
that operates over their beliefs and desires. But what agents can do rationally in this sense is a function
of their internalist reasons.”80 Thus I believe judgments of moral responsibility should require an
internal assessment of the reason-responsiveness of agents, that is, an assessment from the subjective
perspective of the agents themselves. As a result of my adherence to this theory, I have come to blame
fare fewer persons for their wrongful conduct than I did at the beginning of my career. Thankfully, I
suspect that blameworthiness is relatively unusual in contemporary society.
Admittedly, relatively few moral and legal philosophers share the theory of responsibility that
would exempt wrongdoers from blame when they are ignorant their conduct is wrong. Most
philosophers, I believe, hold a version of what might be called a quality of will theory of responsibility.
According to this class of theories, moral responsibility is not located in an agent’s defective practical
reasoning---at least as I understand this term. Instead, responsibility for a wrongful act is grounded in
the will: agents are blameworthy when their acts proceed from a will that is morally objectionable.
77
New books appear almost weekly. For two recent contributions, see Erin I. Kelly: The Limits of Blame
(Cambridge: Harvard University Press, 2018); and Elinor Mason: Ways to be Blameworthy: Rightness, Wrongness,
and Responsibility (Oxford: Oxford University Press, 2019).
78
Gideon Rosen: “Culpability and Moral Ignorance,” 103 Proceedings of the Aristotelian Society 61 (2002).
79
Michael Zimmerman: Living With Uncertainty (Cambridge: Cambridge University Press, 2008).
80
Neil Levy: Hard Luck: How Luck Undermines Free Will and Moral Responsibility (Oxford: Oxford University Press,
2011), p.128.
15

Expressed somewhat differently, an individual is morally responsible when her action expresses negative
attitudes that reveal something bad about her as a person. Countless variations and permutations of
quality of will theories have been proposed, but a sustained evaluation of this family of views is well
beyond my present scope. Suffice it to say that their central (but not their only) differences consist in
the accounts they offer of the exact factors that make the quality of a will objectionable. The candidates
mentioned most often include contempt, hostility, indifference, lack of consideration for the welfare
and interest of others, and even disrespect for norms.
Several philosophers who hold quality of will theories expressly advertise their ability to resist
proposals to exculpate wrongdoers who act in moral ignorance. I suspect that the difficulty of
demonstrating why ignorance of wrongdoing does not exculpate has boosted the popularity of these
theories; philosophers frequently appeal to quality of will accounts in the course of their efforts to
refute views they regard as highly counterintuitive, such as those of Zimmerman and Rosen.
Philosophers who hold quality of will theories sometimes express bafflement (or even outrage) about
criteria that take seriously the possibility that ignorance of wrongfulness might exculpate as widely as
my own account would allow. Thus they would not hesitate to blame the ancient slave-owning Hittites.
But I am unmoved. A number of quality of will theorists agree that the agent’s beliefs about the
wrongfulness of her conduct should be included among those factors from which the quality of her will
is inferred. To decide whether they are correct, recall that we are making comparative judgments.
Consider two thieves, the first but not the second of whom is aware her theft is wrongful. Clearly, the
wills of these individuals can be distinguished: their actions express something significantly different
about them as persons. The first thief manifests a willingness to act contrary to what she knows to be
the demands of morality, whereas the thief who is unaware of the wrongfulness of her act manifests
nothing comparable. On what ground should this difference be regarded as immaterial to an
assessment of the quality of their respective wills? On the level of intuition, I regard the will of the first
wrongdoer to be far more reprehensible. Quality of will theorists who reject my judgments about the
responsibility of morally ignorant offenders thus need to establish not only that the will is the locus of
blameworthiness, but also that ignorance of wrongdoing is immaterial to judgments about the quality of
the will. I doubt they will succeed in meeting these burdens. For present purposes, then, the most
important difference between my reason-responsive theory and a quality of will theory is not whether,
but to what extent they support the conclusion that ignorant wrongdoers deserve less punishment than
those who commit wrongs knowingly.
In addition to recognizing a partial or complete defense for ignorance of wrongdoing, the

severity of punishments could be reduced through a second route: by attaching formal recognition to a
variety of mitigating circumstances. By definition, a circumstance mitigates when it lessens the
harshness of a deserved punishment relative to a baseline. The systematic implementation of this
proposal, however, would require a theory (or at least a set of principles) of mitigation that would
include a specification of the baseline. The lack of scholarly effort devoted to this task stands in stark
contrast to the overwhelming attention directed to the construction of a theory of complete defenses.81
81
The most sophisticated effort is still Paul H. Robinson: “Criminal Law Defenses: A Systematic Analysis,” 82
Columbia Law Review 199 (1982).
16

Perhaps some theorists are so fixated on precluding punishment that they neglect opportunities to
lessen its severity. At any rate, this imbalance should be rectified as part of the project of using desert
to reduce the severity of punitive sanctions.
I have suggested a relatively simple means to identify the mitigating circumstances that should
be formally recognized by sentencing authorities.82 These circumstances are either partial excuses or
partial justifications. In short, the severity of the punishment a defendant deserves should be reduced if
either he or his act has an analogue in a complete excuse or justification. The clearest (but not the only)
kind of analogue exists when the facts that describe him or to his act would amount to a complete
defense were they greater in degree. For example, if a defendant uses slightly more force than would
fully justify his act against a culpable aggressor, he should be granted a partial justification. Or if his
mental disease or defect slightly impairs his capacity to conform his behavior to reason, he should be
granted a partial excuse. Commentators have long been puzzled by the fact that legal judgments are
typically bivalent---defendants are either justified or excused they are not---even though the facts that
gave rise to these judgments are almost always scalar.83 Recognition of formal mitigating circumstances
that conform to the description I have offered would go some distance toward responding to this puzzle.
One mitigating circumstance that does not have a straightforward analogue in a complete
defense merits a more extended discussion: the severity of the punishment a particular defendant
would otherwise deserve should be reduced when he has been “already punished” or “already punished
enough” for his offense before his official sentence has been imposed by the state.84 As we have seen,
the proportionality principle states that the extent of the sentence that a defendant deserves should be
a function of the seriousness of her crime. But nothing in this principle requires that punishment must
be imposed by the state. To my mind, the insistence that the only real punishments are state
punishments, or that the only punishments that count for purposes of applying the principle of
proportionality are those inflicted by the state, has done a disservice to criminal theory in myriad
ways.85 One of the ways this claim has done a disservice is by exempting non-state punishments from
being taken into account when the principle of proportionality is applied and defendants are sentenced.
Reservations from legal philosophers about accepting the “already punished” plea stem come
from some of the most distinguished legal philosophers of our era. Two merit special mention. First,
some influential definitions of punishment would seem to disqualify the relevance of this plea. The most
widely-quoted such definition has been proposed by HLA Hart. For present purposes, the relevant
clause in Hart’s definition is that a “standard case” of punishment “must be imposed and administered
by an authority constituted by a legal system against which the offense is committed.”86 It follows that a
deprivation, however onerous, cannot qualify as a genuine punishment unless it is imposed by a legal
authority acting on behalf of the state. I see little reason to accept this prong of Hart’s celebrated
82
Douglas Husak: “Partial Defenses,” in Douglas Husak, ed.: op.cit. Note 21, p.311.
83
For example, see Leo Katz: Why the Law is so Perverse (Chicago: University of Chicago Press, 2011), esp. Part III;
and Adam J. Kolber: “Smooth and Bumpy Laws,” 102 California Law Review 655 (2014).
84
Douglas Husak: “Already Punished Enough,” in Husak, ed.: op,cit. Note 75, p.433.
85
See Leo Zaibert: Punishment and Retribution (Ashgate, 2006).
86
H.L.A. Hart: Punishment and Responsibility (Oxford: Oxford University Press, 2d.ed., 2008), p.5.
17

definition.87 Nothing in the concept precludes genuine punishments from being levied by friends,
spouses, vigilantes, or total strangers.88 Second, Antony Duff famously suggests that the primary
function of institutions of penal justice is to call defendants to answer for their crimes.89 Anything
undesirable that happens to a defendant that is not a part of the state’s response to his answer lies
beyond this function of penal justice, and thus should not be allowed to influence the punishment that
is appropriate. Even if Duff has correctly identified the most important function of criminal justice
institutions, however, it hardy follows that the state response that is warranted when defendants
provide a deficient answer should not be reduced when parties other than the state have inflicted
punishments.
I will not seek to further contest these legal philosophers on the level of theory. Instead, I
simply report my intuition that non-legal deprivations should be allowed to offset state punishments
under at least two circumstances. First, consider harms that befall to perpetrators in the course of the
very criminal incident itself. Suppose, for example, that a drunk driver is seriously injured in the crash of
his vehicle. If consigned to a wheelchair for the remainder of his life, why should his sentence be just as
severe as that of a drunk driver who escapes unscathed? Second, consider harms that third parties
impose on perpetrators for their crimes. Suppose, for example, that the husband of a rape victim
locates and beats the offender severely. If permanently disabled, why should the latter’s sentence be
just as harsh as that of a rapist who is undetected until he is arrested by the police? Although
reasonable minds may disagree, I would take these harms into account in calculating the amount of the
punishment, if any, that defendants deserve when the state calls them to account. Again, I resort to
comparative judgments about offenders who are otherwise relevantly similar in the hope of supporting
my position intuitively. It seems callous to treat the defendants as though these harms had not
occurred when states calculate the sentence that is deserved.
Let me provide a specific illustration of the kind of situation in which at least partial exculpation
should be extended. At least 833 pediatric deaths have been caused by heatstroke in locked cars
throughout the United States since the mid-1990s.90 In the scenarios I have in mind, the busy parent
simply forgets the toddler is in the backseat and is subsequently horrified when he returns to find the
child has died. One can debate whether these cases of forgetting involve recklessness or negligence.91
Whatever level of culpability is involved, however, I believe the awful tragedy endured by the distraught
parent should mitigate the sentence that would otherwise be deserved. The parent has already
suffered, and probably has already suffered enough---that is, to a sufficient degree to preclude criminal
punishment altogether. Many (but not all) law enforcers apparently agree, because prosecutors in
87
Douglas Husak: “A Framewor for Punishment: What is the Insight of Hart’s Prolegomenon?” in C.G. Pulman, ed.:
Hart on Responsibility (Palgrave Macmillan (2014), p.91.
88
Douglas Husak: “Does the State Have a Monopoly to Punish Crime?” in Chad Flanders and Zachary Hoskins, eds,:
The New Philosophy of Criminal Law (London: Rowman & Littlefield, 2016), p.97.
89
R.A. Duff: Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart Pub.Co., 2007).
90
See Sharon Otterman: “When a Child Dies in a Hot Car, Is It an Accident, or Is It a Crime?” The New York Times
(August 1, 2019), p.A1.
91
See Douglas Husak: “Negligence, Belief, Blame and Criminal Liability: The Special Case of Forgetting,” 5 Criminal
Law and Philosophy 199 (2011).
18

many (but not all) jurisdictions elect not to bring charges in these situations. One prosecutor explained
his decision not to file charges by stating “there’s nothing as a prosecutor you are ever going to be able
to do to that parent that is going to come close to what that parent is going to have to live with for the
rest of their [sic] life.”92 The suppressed premise in his argument is that the suffering experienced by the
parent should offset or preclude the severity of whatever punishment the state inflicts. Explicit
recognition of a sentence reduction in this circumstance would help to resolve any discrepancy among
jurisdictions and formalize the case for partial or complete exculpation.
My third and final example of a means by which a defense might be expanded to reduce or
preclude the severity of punishment has recently become more familiar and widely-discussed among
criminal theorists.93 It begins with the mundane observation that penal statutes, especially when they
are instances of mala prohibita, are inevitably overinclusive. A statute is overinclusive, in the relevant
sense, when it is designed to prevent some harm but proscribes tokens of conduct that do not cause or
threaten to cause that harm.94 Presumably, tokens of conduct that fall within an overinclusive statute
but do not cause the harm the statute is designed to prevent are not wrongful. The rationale that
justifies the law does not pertain to them. Since virtually all rules are overinclusive to some extent,95
any number of examples of statutes that prohibit seemingly permissible tokens of conduct could be
given. Although many commentators have tried to show that such conduct can somehow be shown to
be impermissible after all, the wrongfulness constraint in a theory of criminalization and punishment
should place it beyond the reach of the penal sanction.96 Liability for such conduct would be
undeserved.
It would be helpful to consider specific examples of the phenomenon under discussion. What is
a paradigm case of a token of permissible conduct that is proscribed by an otherwise justified
overinclusive statute? Statutory rape has long been among the favorite illustrations.97 Presumably, not
all women below a given age are too immature to give effective consent to sexual relations. But rather
than focus on a particular instance, I caution that no single example is likely to be without controversy or
clearly representative of the entire class. A focus on a particular example may cause distraction. One of
many possible grounds on which to contest the usefulness of a given example stems from uncertainty
about whether the conduct in question causes whatever harm the statute is designed to prevent. To be
92
op.cit. Note 89.
93
Duff and I have been disagreeing about this issue for nearly as long as we have known one another. See
Douglas Husak: “Malum Prohibitum and Retributivism,” in Husak, ed.: op.cit. Note 21, p.410.
94
Some refinements are necessary. For example, the conduct in question must not cause some other harm that is
legitimately criminalized. Conduct might still be impermissible even though it does not cause the harm the statute
in question is designed to prevent.
95
See Frederick Schauer: Playing By the Rules (Cambridge: Harvard University Press, 1992).
96
Some theorists allege that this conduct is wrongful after all. For prominent examples, see Stuart P. Green: “Why
It’s a Crime to Tear the Tag off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses,” 46
Emory Law Journal 1533 (1997); Andrew Cornford: “Rethinking the Wrongness Constraint on Criminalization,” 36
Law and Philosophy 615 (2017); and Youngjae Lee: “Malum Prohibitum and Proportionality,” Criminal Law and
Philosophy (forthcoming).
97
Additional examples are discussed in James Edwards: “Criminalization without Punishment,” 23 Legal Theory 69
(2017).
19

confident about this matter, of course, commentators must be able to specify what that harm is. This
problem is formidable; particular statutes may prevent (and be designed to prevent) several different
harms, and no authoritative guidance about the statutory objective is likely to be available.98 Even
though this difficulty may be easy to appreciate in the abstract, it can be missed when specific examples
are before us.
To be sure, the objective of preserving the wrongfulness constraint does not require that
overinclusive statutes must be repealed. No one should reject the justifiability of these laws
altogether.99 In order to salvage them, I would invoke a distinction familiar to constitutional lawyers but
relatively undeveloped in the criminal domain: a contrast between a facial challenge to a statute, which
seeks to invalidate it in its entirety, and an as-applied challenge, which seeks to invalidate a particular
application of that statute.100 A successful “as-applied” challenge leaves the statute intact. Thus it can
continue to be applied to cases in which the defendant causes or risks the harm the statute is designed
to prevent. To be clear, I add that neither kind of challenge need be made on constitutional grounds. I
am agnostic about the extent to which the wrongfulness constraint should be accepted as a matter of
constitutional interpretation. My only claim is that an overinclusive penal law should not be applied to
proscribe and punish tokens of conduct that are permissible, even though the statute itself remains an
acceptable part of our criminal code.
It would be optimal if the state could manage to avoid convicting and punishing persons whose
conduct is permissible while retaining the many practical advantages of drafting overinclusive
legislation. Either of two devices to achieve this objective illustrates the fluid nature of the boundary
between defenses and offenses. First, the state might extend an explicit defense to those who engage
in conduct of the sort I have described. Ideally, this defense would be codified as a general provision
potentially applicable to each offense. What I have in mind is presently (if misleadingly) included as a
part of the de minimis defense in the Model Penal Code,101 which provides: “The Court shall dismiss a
prosecution if, having regard to the nature of the conduct charged to constitute an offense and the
nature of the attendant circumstances, it finds that the defendant's conduct ... did not actually cause or
98
For example, I have long been puzzled about the nature of the harm(s) various drug proscriptions are designed
to prevent. See Douglas Husak: Legalize This! The Case for Decriminalizing Drugs (London: Verso, 2002).
99
Although Duff treats my work charitably and sympathetically throughout The Realm of Criminal Law, (op.cit.
Note 65), he misinterprets me on one occasion (although I was not sufficiently clear in the first place). I say “the
state should not create crimes that will subject offenders to punishment without good reason to believe that the
punishment to which such persons will become subject would be justified.” (Overcriminalization, op.Cit. Note 43,
p.78.) This comment could be read to suggest I oppose the enactment of overinclusive penal laws altogether. Duff
alleges that I take the fact that overinclusive laws inevitably proscribe some tokens of conduct that are permissible
to “cast doubt on the justifiability of such laws.” (op.cit. Note 65, p.65). I should not have been understood to claim
that these laws have no place in penal codes. No penal law would pass muster if overinclusion jeopardized its
justifiability. I should have been more careful to indicate that the enactment of any such crimes must include a
means by which persons whose conduct is permissible can evade liability and punishment.
100
For an overview of the distinction and a discussion of its complexity, see Richard Fallon: “Fact and Fiction About
Facial Challenges,” 99 California Law Review 915 (2011).
101
See Douglas Husak: “The De Minimis ‘Defence’ to Criminal Liability,” in R.A. Duff and Stuart Green, eds.:
Philosophical Foundations of Criminal Law (Oxford: Oxford University Press, 2011), p.410.
20

threaten the harm or evil sought to be prevented by the law defining the offense.”102 Second, much the
same outcome could be achieved by including an implicit provision among the elements of all applicable
penal statutes. As a result, each offense would be understood to require defendants to cause or
threaten more than a de minimis amount of the harm the law is designed to prevent. The first solution
creates a general defense; the first adds an element to the complete specification of offenses. These
two solutions differ, primarily in their implications for how burdens of proof should be allocated. For
present purposes, however, their similarities are more important. Either device would allow the
criminal law to simultaneously satisfy three desiderata: to enact and enforce overinclusive legislation,
preserve the wrongfulness constraint, and reduce the amount of punishment the state presently inflicts.
In case I am accused of believing that desert-based considerations inevitably favor a reduction in

the severity of punishments imposed by positive law, I conclude by mentioning a context in which I
believe they fail to do so. Any number of defendants have argued they do not deserve punishment for
the offense of using a controlled substance because they are addicts who have lost their ability to
refrain.103 Voluntariness is a prerequisite of deserved criminal liability, and, the allegation continues,
addicts are unable to voluntarily refrain from persisting to use the substance to which they are addicted.
I contest this judgment, but almost entirely on empirical grounds. If addicts were unable to desist,
punishment would be undeserved. The argument fails, however, because many addicts can and do
refrain from consumption.104 I hasten to add, however, that even this apparent exception to the general
force of desert-based arguments to reduce punishments may be more apparent than real. I am
unpersuaded that persons (addicted or otherwise) deserve any amount of punishment for the
substances they ingest.105 Thus it is peculiar to assess the claim that an addict deserves less punishment
for using an illicit substance than a non-addict.106
Moreover, consider the plight of addicts who are punished when they violate a term of
probation to which they had consented as a condition for not being incarcerated for an underlying
offense they committed to feed their addiction. Some of these addicts have argued that it is unjust for
their probation to be revoked when their violation of the condition is not willfull.107 But if probation
could not be revoked for failing a requirement to remain abstinent, fewer defendants who commit
crimes to feed their addiction would be sentenced to probation and would instead be incarcerated
without receiving a second chance. Thus I would expect a holding that addictive drug use is not willful
to result in a net increase in the severity of punishments. My point is that a denial that addictive drug
102
Model Penal Code, Sec. 213.
103
See, for example, Manning v. Caldwell (U.S. Ct. of Appeals, 2019).
104
See Gene M. Heyman: Addiction: A Disorder of Choice (Cambridge: Harvard University Press, 2009).
105
See op.cit. Note 47.
106
See Michael S. Moore: “Addiction, Responsibility, and the Potential Contributions of Neuroscience,” in his
Mechanical Choices: The Responsibility of the Human Machine (Oxford: Oxford University Press, 2020), p.477.
107
For example, see Commonwealth v. Eldred, 101 N.E.3d 911 (Mass. 2018);
21

use is voluntary might well add to rather than subtract from the net quantum of punishment inflicted
throughout the United States today.108
Concluding Thoughts
If I am correct, quite a few of the punishments presently imposed in the United States are
almost certainly undeserved. Desert-based arguments can be used to bring about reductions in the
severity of sentences either by narrowing the number and breadth of offenses, or by increasing the
scope and application of defenses. Although the latter path is probably explored less frequently, it may
have the greater potential to reduce our notorious propensity to be overly harsh. Thus retributivists
should be encouraged to promote themselves as part of the solution rather than as a cause of the
problem of mass incarceration and over-punishment. But modesty is needed. For two reasons, I do not
pretend that the project of showing significant numbers of punishments to be undeserved will have a
dramatic impact on the goal of reducing the size and scale of our criminal justice system. First, the
amount of leniency that would ensue if my recommendations were implemented is impossible to gauge.
We can hazard a rough estimate of the effects of repealing drug offenses, but quantifying the impact of
expanding the several defenses I have mentioned is far more speculative. Second, philosophers of law
play only a limited role in real-world reforms, as policy makers continue to pay little attention to us in an
era in which issues of criminal justice are so thoroughly politicized. But we should not despair. In my
experience, politicians feel more secure in their recommendations if they are confident that legal
philosophers support their efforts---even if scholarly argument is not what influenced their
recommendations in the first place. Thus we should endeavor to offer whatever assistance we can to
those who aspire to curtail over-punishment and have the authority to shape policy for the better.
I am aware I have only scratched the surface in suggesting how retributivists could invoke
considerations of desert to narrow the range of offenses or to enlarge the application of defenses. I
welcome additional suggestions about how we retributivists might join forces to invoke desert to
support reductions in the severity of punitive sanctions.
108
See Stephen J. Morse: “The Criminal Responsibility of Opioid Addicts,” The American Interest (11/09/2018),
November 11, 2018); https://www.the-american-interest.com/2018/11/06/the-criminal-responsibility-of-opioid-
addicts
22

Retributivism and Over-Punishment Douglas Husak

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RETRIBUTIVISM AND OVER-PUNISHMENT

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As a self-proclaimed retributivist, I find these allegations to be troubling and unwarranted.7 The

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We can hardly rely on a crisis of public health to fuel a de-incarceration movement.

I: Four Conceptual Points

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These considerations lead me to suspect that commentators may be misguided to fixate

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II: Substantive Considerations: Offenses

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Nonetheless, it is worthwhile to consider whether there might be additional offenses that

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III: Substantive Considerations: Defenses

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In addition to recognizing a partial or complete defense for ignorance of wrongdoing, the

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In case I am accused of believing that desert-based considerations inevitably favor a reduction in

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