Retribution and Just Deserts
Chapter Thirty-Three
Syllabus topic 2, "Theories of Punishment"
Pages 133 to 136 of 806
In one line
Just deserts is the modern form of retribution: it keeps the claim that the sentence must fit the offence and adds the machinery for saying what fits.
In the wording a student can write in an exam: the just deserts theory holds that the severity of the punishment should be proportionate to the seriousness of the offence, seriousness being a function of the harm done and the culpability of the offender. It supplies two principles: ordinal proportionality, which requires offences to be ranked and punishments ranked alongside them so that a graver offence attracts a graver penalty; and cardinal proportionality, which anchors the scale by fixing the penalties at its ends. It emerged in the 1970s as a reaction against the indeterminate sentences that the rehabilitative ideal had produced.
Why the theory came back
The rehabilitative ideal dominated official thinking from the 1930s to the 1970s, and it produced a particular kind of sentence: indeterminate, so that the offender was released when the experts judged them cured.
Three objections destroyed it.
It did not work. Evaluations of rehabilitation programmes in the 1970s were widely read as showing that little of what was being done reduced reoffending.
It was oppressive. An indeterminate sentence gives the offender no way of knowing when they will be released and gives the administrators a power over them that no court has reviewed.
It was unequal. Two people who did the same thing received different sentences because they were judged differently curable, which struck many as unjust however therapeutically sound.
Just deserts was the answer: sentences should be determinate, proportionate to the offence, and fixed by law rather than by the judgment of experts about the offender's prospects.
The two proportionalities
This distinction is the theory's real contribution and it is worth reproducing in an answer.
Ordinal proportionality governs the relations between sentences. If offence A is graver than offence B, then A must attract a graver penalty than B. It is a requirement of internal consistency and it can be satisfied by many different scales.
Cardinal proportionality governs the absolute level of the scale. Ordinal proportionality alone is satisfied by a scale running from a day to a week and by one running from a year to death, so long as the ranking is preserved. Cardinal proportionality anchors the scale by fixing what the most and least serious offences attract.
Almost every dispute about sentencing severity is a dispute about cardinal proportionality, and almost every complaint about disparity is a complaint about ordinal proportionality. Naming them separates two arguments that are usually confused.
Seriousness: harm and culpability
Just deserts measures the seriousness of an offence by two components.
Harm. The injury done or risked, to the victim and to the public.
Retribution and Just Deserts
Culpability. The offender's blameworthiness: intention, knowledge, recklessness, negligence, motive, and the degree of participation.
Both are needed. Harm alone would punish an unlucky accident like an intended killing; culpability alone would punish an attempt like a completed offence. Every mature sentencing system grades on both.
What just deserts excludes
This is where the theory bites and it is what makes it a real constraint rather than a description.
Previous convictions. On a strict desert view a previous conviction says nothing about the seriousness of the present offence, so it should not increase the sentence. Modern desert theorists usually allow a modest discount for a first offender rather than a premium for a recidivist. Indian law goes the other way: section 13 of the Bharatiya Nyaya Sanhita 2023 raises the ceiling for a repeat property or coinage offender, and section 71 does so far more severely in sexual offences.
Dangerousness. A sentence longer than the offence deserves, imposed because the offender may offend again, is preventive detention wearing a sentence's clothes. Desert forbids it.
Exemplary sentences. A sentence raised above what the offence deserves because the offence is prevalent uses the offender as a means, which is the objection in [The Retributive Theory].
The offender's prospects of reform. A sentence shortened because the offender seems reformable, or lengthened because they do not, departs from desert. It is what the indeterminate sentence did and it is what the theory was a reaction against.
Indian law measured against it
Where India complies. Determinate sentences are the norm. Proportionality is stated as a principle by the courts and applied on appeal. Harm and culpability both grade the Sanhita's offences.
Where India does not. There is no ranking of offences by seriousness beyond the maxima the statute happens to fix, so ordinal proportionality is unpoliced except where an appellate court intervenes. There is no sentencing council or guideline machinery. And repeat offending raises the ceiling in ways strict desert would not allow.
The one place India comes close. The rarest of rare doctrine is an attempt at cardinal proportionality for the top of the scale: it says what the gravest penalty is reserved for. It is significant that the only structured Indian sentencing doctrine concerns the one sentence that cannot be corrected.
A worked example
Rank three offences and see what the theory requires.
| Offence | Harm | Culpability |
|---|---|---|
| A takes a bicycle worth four thousand rupees, first offence, returns it | Small, and repaired | Low |
| B, a bank employee, misappropriates two lakh rupees over a year | Substantial, and a breach of trust | High, sustained and planned |
| C causes death by rash driving | The gravest harm there is | Low, no intention, but real negligence |
Retribution and Just Deserts
Ordinal proportionality requires B to be punished more heavily than A. It does not by itself tell us where C sits, because C's harm is the greatest and C's culpability the least, and the theory has to weigh them.
Cardinal proportionality asks what the actual figures should be, and that is a question the theory cannot answer from within: it needs a decision about the level of the whole scale.
What Indian law does. A is dealt with by the proviso to section 303(2) of the Bharatiya Nyaya Sanhita 2023, community service. B and C are left to the court's discretion within wide maxima, with no ranking to guide it.
What beginners get wrong
They treat just deserts as a synonym for harsh sentencing. It is not. It is a theory of proportion, and it is as much an argument against excessive sentences as for adequate ones.
They forget culpability. Desert is not measured by harm alone.
They confuse the two proportionalities. A complaint that sentences are too low is cardinal; a complaint that one offence is punished more heavily than a graver one is ordinal.
They assume it is what Indian law applies. Indian law states proportionality as a principle and has almost no machinery for delivering it.
Quick revision
- Just deserts: severity proportionate to seriousness; seriousness is harm plus culpability.
- Ordinal proportionality: the ranking of offences must match the ranking of penalties. Cardinal proportionality: the absolute level of the scale, fixed by anchoring its ends.
- It arose in the 1970s against the indeterminate sentence, on three grounds: rehabilitation did not work, indeterminacy was oppressive, and it produced unequal sentences for the same act.
- It excludes previous convictions as a ground for enhancement, dangerousness, exemplary sentences and the offender's prospects of reform.
- Indian law departs from it on repeat offending, section 13 and section 71 of the Bharatiya Nyaya Sanhita 2023, and has no machinery for ordinal proportionality.
- The rarest of rare doctrine is India's nearest approach to cardinal proportionality, and it applies only to the death penalty.
Test yourself
1. Distinguish ordinal from cardinal proportionality. Ordinal proportionality governs the relations between sentences: a graver offence must attract a graver penalty, so that the ranking of offences matches the ranking of punishments. Cardinal proportionality governs the absolute level of the scale, since a consistently ranked scale could run from a day to a week or from a year to death, and it is fixed by anchoring the penalties at the ends of the scale.
2. What are the two components of seriousness, and why are both needed? Harm, that is the injury done or risked; and culpability, that is the offender's blameworthiness in terms of intention, knowledge, recklessness, negligence, motive and degree of participation. Both are needed because harm alone would punish an unlucky accident as heavily as an intended killing, and culpability alone would punish an attempt as heavily as a completed offence.
Retribution and Just Deserts
3. Why did just deserts emerge in the 1970s? As a reaction against the indeterminate sentence produced by the rehabilitative ideal. Evaluations were read as showing that rehabilitation programmes achieved little; indeterminate sentences gave the offender no way of knowing when they would be released and gave unreviewed power to administrators; and treating two offenders who had done the same thing differently because they were judged differently curable was seen as unjust.
4. Name two features of Indian law that a strict desert theorist would object to. Section 13 of the Bharatiya Nyaya Sanhita 2023, which raises the sentencing ceiling for a repeat offender in coinage and property offences, and section 71, which does so far more severely for repeat sexual offences. On a strict desert view a previous conviction says nothing about the seriousness of the present offence, and desert theorists generally allow a discount for a first offender rather than a premium for a recidivist.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.