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33 Wayne L. Rev. 1343 (1986-1987)
The Concept of Desert

handle is hein.journals/waynlr33 and id is 1357 raw text is: THE CONCEPT OF DESERT Edward M. Wiset Desert is a substantive derived from an obsolete past partici- ple of the old French verb deservir, to deserve. It refers to that in conduct or character which deserves reward or punishment, or to that which is deserved: a due reward or recompense, whether good or evil.' Since criminal law is concerned with punishment rather than reward, desert in the context of criminal law generally signi- fies a deserved punishment-the due recompense for the defend- ant's crime. The concept of desert usually is associated with retributive theo- ries of punishment. Retribution, as the term ordinarily is understood, means punishment imposed because an offender deserves it, to the extent that he deserves it. Such punishment is never supposed to be inflicted merely as a means of furthering some extraneous good for the criminal himself or for civil society.2 Desert-based punishment is generally opposed, in this respect, to punishment imposed for utili- tarian purposes. It also is supposed to be commensurate with the evil represented by the crime itself. It is supposed to be meted out in more or less definite doses proportioned to the nature of the crime, and to avoid the kind of apparently arbitrary individualization that occurs when efforts are made to tailor punishment to fit the offender rather than the offense. This Article will raise some questions about these usual supposi- tions regarding the concept of desert.3 I shall consider, first, whether scaling punishment to desert may not be important for other than retributive purposes. I suggest that it is, although how far it is possi- ble to disassociate desert completely from retributivism ultimately depends on how one defines a retributive theory of punishment. t Associate Dean and Professor of Law, Wayne State University. B.A. 1956, University of Chicago; LL.B. 1959, Cornell University; LL.M. 1960, New York University. 1. COMPACT EDITION OF THE OXFORD ENGLISH DICTIONARY 697 (1971). 2. 1. KANT, The Metaphysics of Morals, in I KANT'S POLITICAL WRITINGS 154 (H. Reiss ed. 1970). 3. 1 have drawn on ideas expressed in Wise, Le Rble du Pouvoir Discretion- naire Judiciaire et Administratif dans la Dbtermination de la Durbe d'une Sen- tence: Etats-Unis, 1983 JOURNtES DE LA SOCIfTf DE LfGISLATION COMPARtE 137. I also have benefited from further discussion of a number of points with my col- league Joshua Dressier. 1343

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