I’ve noted a few times (e.g., here) Paul Robinson’s much-discussed theory of “empirical desert.” Briefly, Robinson has attempted to provide a utilitarian justification for desert-based punishment. His view is that criminal law and sentencing should track popular beliefs regarding the relative blameworthiness of different categories of crime. When the criminal-justice system does not conform to widely shared beliefs regarding just punishment, the system’s legitimacy is diminished. This is important because the system’s legitimacy is, more than anything else, what leads people to feel a sense of obligation to obey the law. Thus, the desert-based approach (as opposed, for instance, to one built around competing theories like efficient deterrence or selective incapacitation) is the one that is most likely to lead to the best crime-control results.
I think Robinson’s theory offers a useful way to establish some common ground among utilitarians and retributivists, although I also think that Robinson has somewhat oversold the potential for empirical desert to provide clear answers to the really tough questions in criminal-justice policy.
It seems to me that empirical desert is most appealing if one thinks about it in terms of a rebuttable presumption in favor of a range of answers that are not inconsistent with public views of blameworthiness. This would, in a sense, assimilate empirical desert to another hybrid approach, Norville Morris’s theory of limiting retributivism. Such a hybrid-hybrid would leave empirical desert with a modest role to play, but I’ve not been convinced that the scientific support for Robinson’s approach is strong enough to warrant a full displacement of other approaches.
Now I see that Christopher Slobogin has a new essay that very effectively critiques the empirical grounding of Robinson’s theory, “Some Hypotheses About Empirical Desert,” 42 Az. St. L.J. 1189 (2011). Each of Slobogin’s ten hypotheses would, if true, substantially undercut important pieces of Robinson’s argument. Slobogin explains these hypotheses in such a clear and succinct form that I won’t try to restate them here, except to highlight one point that has always troubled me about Robinson’s work, which is his reliance on Tom Tyler’s research on procedural justice (which I discuss here). Tyler does indeed support Robinson’s view that the perceived legitimacy of the legal system plays a key role in determining the extent to which people obey the law, but Tyler emphasizes procedural justice as the basis for legitimacy, not the substantive outcomes of criminal litigation. As Slobogin puts it:
Tyler’s views as to why people obey the law are more complex than Robinson suggests. The extent to which the law reflects the public’s moral views is not unimportant, but equally if not more important is the public’s perception of whether the law has considered those views, is transparent, and fairly adjudicates disputes when contested moral values are at issue. (1198)
I made much the same observation, albeit less pointedly, in my article, “Plea Bargaining and Procedural Justice,” 42 Ga. L. Rev. 407 (2008).