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Deterrence in a Sea of “Just Deserts”: Are Utilitarian Goals Achievable in a World of “Limiting Retributivism”?

Recent scholarship on theories of criminal punishment has increasingly focused on retributivist justifications for punishment. While within this retributivist camp opinions differ as to the particulars of such policies, there is general agreement that criminals getting what they deserve, that is, their 'just deserts,' should be the underlying goal and rationale of the criminal justice system. From this point, these scholars argue that a criminal should receive punishment according to what the criminal deserves. Some forms of retributivism, however, have attempted to draw support from other theories of criminal punishment. By borrowing elements of other theories, specifically utilitarian theories, scholars have attempted to bolster support for retributivist policies. A particularly well received form of retributivism and the focus of this Comment, 'limiting retributivism,' argues that a range of punishments will fall within the criminal's just deserts, and that utilitarian concepts can alter the punishment within the aforementioned range. This Comment scrutinizes limiting retributivism's appeal to utilitarian theories of punishment to determine if such a system of punishment can achieve many of the outcomes sought by utilitarian theories, specifically deterrence. This Comment argues that the answer to this question, while complex, is ultimately no. I begin my inquiry by expounding on the history of retributive and utilitarian theories of punishment, and the specific concepts of limiting retributivism and what 'factors' exist in determining a criminal's just deserts. Then, I shift focus and analyze the practical effects of these factors in light of recent behavioral psychology and behavioral law and economics research on cognitive biases. Subsequently, I describe why these insights into human psychology and the effects of cognitive biases will actually lead to under-deterrence of criminal activity. I develop this point by acknowledging that while this research also questions utilitarianism's proposal for deterrence through ex ante incentives, the under-deterrence effect of limiting retributivism is far higher than that of utilitarianism. I also highlight why such under-deterrence is fundamentally contrary to utilitarian goals of punishment. I end by arguing that, given the insights of behavioral psychology, utilitarian goals of punishment are not sufficiently accomplished under limiting retributivism. A more pure form of utilitarianism is required to achieve utilitarian goals with hard and fast criminal rules with no appeal to or use of other theories of punishment. I also propose that utilitarians, in collaboration with behavioral law and economics scholars, can further understanding of how the criminal law may incorporate behavioral psychology insights to create more effective ex ante incentives.