The concept of “just deserts” can be most effectively described in the writings of Andrew Von Hirsch. Basically those who commit crime deserve to be punished and by punishing them it may prevent further crimes from being committed (Siegel, 2012). There have been many different positions on this theory of just deserts. Some argue against while others strongly defend the effectiveness of this theory. We will look at both sides of the argument and review the pros and cons of each. The main rationale behind this theory is that committing a crime is wrong therefore a person should be punished for the crime they committed. For some this “eye for an eye” attitude bares a close resemblance to vengeance. Of course this is not the goal of the criminal justice system. Vengeance has no place within the criminal justice system. Therefore, the criminal justice system looks at the crime that was committed rather than the person involved in the crime (Sullivan, 2007). So, essentially we are deciding on the punishment by the severity of the crime committed with no regard to the individual who committed the act.
We decide on the punishment according to how much harm was done (McKee, 2007). Unfortunately, this theory disregards other factors that are present which include the circumstances surrounding the crime. Perhaps it is because of this reason that many scholars disagree with the just desert doctrine. The goals of the criminal justice system are retribution, incapacitation, deterrence, and rehabilitation (Wald, 2001). Unfortunately, retribution in many cases is the only goal that is really accomplished by some of the harsh punishments that are handed down under the “just deserts” doctrine. Deterrence may be accomplished by deterring others from committing the same crime; however it often fails to deter the offender that was punished. One report showed that within three years 24.2% of convicted offenders were reconvicted of a new crime after their release (Bureau of Justice Statistics, 2011).
This data clearly shows that even when the offender receives their “just deserts” it fails to deter them from committing another crime. Perhaps it is better to determine the proper punishment not only according to the crime but also the person who committed the crime. Although there are many arguments against the effectiveness of the just deserts doctrine this does not mean that in any way it should be abandoned. If a person commits a crime, especially one that is heinous in nature, they should definitely receive a punishment that fits the crime. We must consider that for many crimes this doctrine is appropriate. For instance, just deserts bring about a sense of equality or fairness to the sentencing aspect of criminal justice. Many states base their sentencing guidelines primarily on the just deserts sentencing theory (Frase, 1997).
With this being said it would be extremely hard to argue that the just deserts theory should be completely left in the dust. There are pros and cons when considering this theory as there are with any theory. I strongly believe that there are aspects of the just desert theory that need to remain unchanged. However, I also believe that we are approaching a new modern time where doctrines that have been used throughout history need to be revised. We now have more understanding of the circumstances that surround some crimes. I feel that there is a need to ensure that the punishment does fit the crime that was committed. It is also my belief that every case is different and some factors need to be considered.
Perhaps it would be more effective to reinvent or even combine past, present, and future theories into a “hybrid” theory. By doing this we can accomplish the many goals set out by the criminal justice system. I feel that offenders need not only punishment but also rehabilitation in many cases in order to decrease the rate of recidivism. We must look at the big picture rather than just a small section. Our prisons are continually being overcrowded and often times by offenders that no longer pose a threat to society. Also, there are cases of criminals receiving a punishment that does not fit the crime. So, by reinventing the just desert theory and shaping it into a more modern theory that is a better fit for our time it may be possible to make sentencing practices more effective.
Bureau of Justice Statistics. (2011). Recidivism rates of prisoners. Retrieved from http://bjs.ojp.usdoj.gov/index.cfm?ty=datool&surl=/recidivism/index.cfm# Frase, R. S. (1997). Sentencing principles in theory and practice. Crime and Justice. Retrieved from http://www.jstor.org/stable/1147577 Haist, M. (2009). Deterrence in a sea of “just deserts”: are utilitarian goals achievable in a world of limiting retributivism? Journal of Criminal Law &
Criminology, 99(3), p. 789-821. Just Desserts. (n.d.) West’s Encyclopedia of American Law, edition 2. (2008). Retrieved January 25 2013 from http://legal-dictionary.thefreedictionary.com/Just+Desserts McKee, A. J. (2007). Justice. Encyclopedia of Crime and Punishment. doi:10.4135/9781412950664 Siegel, L. J. (2012). Criminology (11th ed.). Belmont, CA: Thomson/Wadsworth. Sullivan, L. E. (2007). Just desert. Encyclopedia of Crime and Punishment. doi:10.4135/9781412950664 Wald, P. M. (2001). Why focus on women offenders? Criminal Justice Magazine, 16(1). Retrieved from http://www.americanbar.org/publications/criminal_justice_magazine_home/crimjust_cjmag_16_1_wald.html
University/College: University of California
Type of paper: Thesis/Dissertation Chapter
Date: 11 January 2017
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