100 Iowa L. Rev. 1209 (2015)

Download PDF

Abstract

In the literature on the justification of punishment, unfair advantage theories of punitive desert are prevalent. Several variants have been defended. Although they differ in details, each assumes that a criminal would obtain some unfair advantage or, in other words, an illicit benefit unless he were punished. Criminals deserve to be punished because punishing them is necessary to remove this illicit benefit. In spite of the efforts to defend this sort of theory, none proposed so far in the literature provides a plausible account of the proportionality of punitive desert. This Essay defends a novel unfair advantage theory of punitive desert that is the first to account plausibly for the proportionality of punitive desert. Because this theory explains why and how much criminals deserve to be punished, it should play an important deontological role in limiting the severity of punishments that the state is morally permitted to impose on offenders.