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The Whole Life View of Criminal Desert

In her essay "The Ethics of Punishment"' Gertrude Ezorsky discusses at length the rather elusive notion of criminal desert central both to the retributivist proposition that deserved punishment, in toto, should be inflicted on the criminal, and to the teleological retributivist (her term) thesis that the deserved penalty sets only the upper limit of permissible punishment, the proper penalty being contingent upon more general aims like deterrence. Ezorsky claims that assessing how much misery an offender deserves for his wrongdoing presents two problems, one of degree and one of scope. The former concerns the difficulty of ascertaining the exact amount of suffering appropriate to any given offense. The criterion of fittingness so often employed by retributivists to solve this difficulty is, as Ezorsky points out, notoriously obscure. The second problem, that of scope, concerns the relation between criminal desert and the quantum of undeserved misery an offender has experienced prior to his criminal act. This is unquestionably an important issue, but I believe Ezorsky makes some patently ridiculous claims about it in the course of defending what she calls "the whole life view" (WLV) of criminal desert. I will now attempt to expose the errors of her account in the hope that this may clarify the relation between deserved punishment and undeserved suffering. Ezorsky begins her treatment of the scope problem by assuming that we can somehow mete out punishment consonant with the moral evil of different crimes. Given this assumption let us suppose that Jones commits offense 0 at t, and that he deserves to suffer S and no more than S for committing 0. Suppose also that, before committing 0 at tl, Jones had suffered S at t in a flood. Now, according to Ezorsky, one might plausibly contend that Jones had paid his desert debt in advance. His pre-offense ordeal of S at t nullifies his post-O desert debt of S at t1. Hence while Jones deserves to suffer S for doing 0, he does not deserve to suffer it at tl. This mode of reasoning exemplifies the whole life view of criminal desert: the punishment a man should receive for committing a crime at tl can be measurably affected by the unjust sufferings, including those caused by natural disasters, he has undergone prior to t1.