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A Theory of Differential Punishment

Posted by on Saturday, October 7, 2017 in Articles, Volume 70, Volume 70, Number 5.

A Theory of Differential Punishment


A puzzle has long pervaded the criminal law: why are two offenders who commit the same criminal act punished differently when one of them, due to circumstances beyond her control, causes more harm than the other? This tradition of result-based differential punishment—the practice of varying offenders’ punishment based on whether or not they cause specific “statutory harms”—has long stood as an intractable problem for scholars and jurists alike.

This Article proposes a solution to this long-standing conceptual problem. We begin by introducing a dichotomy between two broad and exhaustive categories of ideological justifications for punishing criminal offenders. The first category, offender-facing justifications, includes many of the most familiar theories of punishment: deterrence, retribution, incapacitation, and rehabilitation. These offender-facing theories seek to justify punishment solely on the basis of facts about a criminal offender, such as her behavior, mental states, and perceived level of dangerousness. Yet, as we demonstrate, because offender-facing theories turn exclusively on facts about an offender and her conduct—rather than on the occurrence of harm outside of the offender’s control—they cannot provide adequate justification for the practice of differential punishment.

We also identify a second category of justifications for punishment that, at least in part, conditions the severity of criminal punishment on the effects that a particular criminal offense has on its victims. These victim-facing justifications include both “expressive” theories of punishment, according to which offenders should be punished out of respect for the victims they have harmed, and vengeance-based theories of punishment, according to which punishment serves to recognize and legitimate victims’ desire for revenge against their offenders. Because victim-facing justifications focus on the harm that crimes cause to victims, they are, if valid, theoretically capable of justifying differential punishment.

However, we will show that victim-facing justifications for punishment are not available for every instance of criminal misconduct. When a criminal offense (1) has no “object” (in that it is not “done” to anyone), (2) has a “victim” who either consented to, or was otherwise culpable for, the commission of the offense, or (3) has a victim who desires to show “mercy” to the offender, victim-facing theories cannot justify differential punishment, rendering the practice categorically unjustifiable in such cases. We conclude by arguing that in these instances, where differential punishment is unjustified, offenders should be punished as if they had not brought about the harmful result that would otherwise subject them to heightened punishment.



Jack Boeglin
Judicial Law Clerk on the U.S. Court of Appeals for the Second Circuit.

Zachary Shapiro
Associate at Davis Polk & Wardwell LLP in New York