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Indeed, one could ask whether the deserved punishment should take account of the defendant’s “whole life.” Should it matter whether before the crime he has fared better or worse than he deserved because of good fortune – in terms of wealth, fame, friendship, love, and so on? Must retributive desert for a discrete culpable act turn on the defendant’s entire life history?11

Finally, there is the overarching problem of how to translate culpability into units of suffering. Just how much suffering does a particular culpable choice – say, setting off dynamite in a crowded neighborhood – merit? If we reject, as we do, the literal lex talionis, how do we commensurate various culpable choices with levels of punishment? This is a problem that we need not solve in this book, but ultimately it is a problem all retributivists face.12

C. THE STRENGTH OF THE RETRIBUTIVIST SIDE CONSTRAINT

A third problem for retributivism is that imperfect human systems of punishment will ultimately fail to perfectly mirror justice, thus resulting in too much and too little punishment. Criminal law doctrines will ultimately entail decisions as to how the balance should be struck. The burden of proof placed on the state to prove the defendant’s guilt and the statutory formulations of crimes and defenses will affect how many innocent people will be punished more than they deserve. If the state must prove only a low level of culpability – or no culpability whatsoever – for the crime as a whole or for particular elements thereof, then the less culpable or the totally innocent will predictably be punished as much as the more culpable.

For those who take the victimization by criminals and punishment greater than desert to be instances of undeserved harm, the goal of minimizing undeserved harm might require punishing more than is deserved in some cases. Obviously, this form of retributivism is

11See J. Feinberg, Doing and Deserving: Essays in the Theory of Responsibility (1970), 116–117; Alexander, supra note 1, at 205; Ezorsky, supra note 10, at xxiv–xxvi; Berman, supra note 5, at 27–29 n. 47.

12For a comprehensive – and pessimistic – analysis of this problem, see Russ Shafer-Landau, “Retributivism and Desert,” 81 Pac. Phil. Q. 189 (2000). But see Murphy, supra note 6, at 147–152.

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more consonant with a consequentialism that takes desert as a basis of distribution than it is with any moral view that takes desert to be a deontological side constraint – the view that we endorse here.13

The issue for us is how great a risk of punishing the innocent – or punishing the culpable more than they deserve – may we impose through our criminal justice system. We impose those risks through the way we define crimes and defenses – substantive doctrines – and through the way we prove them. In the latter category are such items as burdens of persuasion, presumptions, investigatory resources, trial procedures, the law of evidence, and the quality of legal representation. We take up some of these matters in Chapter 8. For now, we merely flag them as considerations that bear on the risk of overpunishment (punishment in excess of retributive desert).

D. THE FREEWILL-DETERMINISM DEBATE

Another issue for retributivists is the freewill-determinism debate.14 If our choices – including character-forming choices – are caused by our unchosen character, and our unchosen character is caused by our genes and our environment, is moral responsibility and hence negative desert undermined? To the extent that determinism is seen as threatening notions of responsibility and desert, it threatens to undermine retributive justifications for punishment.

There are three main types of responses to the challenge to responsibility that determinism is thought to present. The first, “hard determinism,” claims that responsibility and determinism are incompatible and that determinism is true. Therefore, genuine or ultimate responsibility

13See Cass R. Sunstein and Adrian Vermeule, “Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs,” 58 Stan. L. Rev. 847 (2005), for a discussion of desert as a side constraint versus as a distributive goal. Sunstein and Vermeule argue that only individuals, and not the state, are subject to the side constraint forbidding undeserved punishments. For them, the state may maximize with respect to just deserts, even if to do so it must occasionally punish more than is deserved. We disagree with Sunstein and Vermeule on this point. The state is subject to the same deontological side constraints as are all of us. Indeed, the state just is us. See also Berman, supra note 5.

14T his section draws from Stephen J. Morse, “Reasons, Results, and Criminal Responsibility,” 2004 U. Ill. L. Rev. 363.

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is impossible.15 Hard determinism cannot explain those responsibility theories and practices of the criminal law – or, indeed, most moral responsibility theories – that are retrospectively evaluative.16 Rather, hard determinism provides an external critique of criminal law and other moral practices that obliterates moral responsibility and the reactive attitudes that are its corollary.

The second response, “metaphysical libertarianism,” agrees that responsibility and determinism are incompatible, but it also claims that the choices of human beings – or, at least, normal adults – are not determined. On this view, we have a capacity for a freedom that permits us to act not entirely encumbered by the causal processes of the universe.17 This type of freedom is sometimes called “contracausal freedom,” “agent origination,” and other terms such as “prime mover unmoved,” meant to convey the flavor of this godlike power. For the metaphysical libertarian, the buck stops with us. Libertarianism is regarded by most as consistent with the criminal law’s responsibility practices and doctrines. After all, if the causal influences of endowment luck, character luck, and all the other preact influences can be overridden by contracausally free action, then there is clearly a distinction between responsibility for action and responsibility for the luck that precedes and follows one’s action. For many, however, the cost of adopting this apparently elegant solution is that it requires one to adopt a panicky and exceptionally implausible metaphysics in a material universe.18 Quite simply, for them, libertarianism is too metaphysically insecure to ground blame and punishment.

The third response, “compatibilism” or “soft determinism,” is willing to concede that determinism is probably true, but it holds that responsibility is possible in a determined universe.19 Compatibilists

15See, e.g., Derk Pereboom, Living without Free Will 127–157 (2001); Janet Radcliffe-Richards,

Human Nature after Darwin: A Philosophical Introduction 135–147 (2000); Saul Smilansky, Free Will and Illusion 40–73 (2000). See generally Galen Strawson, The Impossibility of Moral Responsibility 5 (1994).

16See, e.g., R. Jay Wallace, Responsibility and the Moral Sentiments 54–61 (1994).

17See, e.g., Robert Kane, The Significance of Free Will 3–22 (2002).

18See, e.g., Hilary Bok, Freedom and Responsibility 1–51 (1998) (arguing that libertarianism is conceptually incoherent); Pereboom, supra note 15, at 1–88 (arguing that libertarianism is conceptually coherent but scientifically implausible); Peter Strawson, “Freedom and Resentment,” in Free Will 59, 80 (Gary Watson, ed., 1982) (using the term “panicky”).

19See, e.g., Bok, supra note 18, at 6–29; Wallace, supra note 16, at 58–62; John Martin Fischer, “Recent Work on Moral Responsibility,” 110 Ethics 93 (1999).

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claim that normal adult human beings possess the type of general capacities sufficient to ground ordinary responsibility, such as the capacity to grasp and be guided by reason.20 They also claim that just as indeterminism does not explain responsibility, determinism does not explain the excuses. Many compatibilists also couple their compatibilism with an internalist view of moral norms and the rejection of an external, mind-independent source of moral authority.21 Compatibilism, which is probably the dominant response among philosophers, thus furnishes for many people the most metaphysically plausible internal justification of responsibility in law and morals.

We need take no stand on the freewill-determinism issue. Two of us – Ferzan and Morse – are persuaded by the arguments for compatibilism. One of us – Alexander – is not. His view is that compatibilism provides only a hollow form of moral responsibility, not the full-blooded form that our reactive attitudes assume. In particular, it seems unresponsive to the worry that what appears to an actor to be a reason, or a reason with a particular positive or negative weight, seems to be beyond the actor’s proximate control. On the other hand, he also believes that libertarianism cannot deliver a form of moral responsibility worth wanting because, just like determinism, its foil, libertarianism takes control out of the agent’s hands and relinquishes it to chance – or else just makes it utterly mysterious. Alexander believes, as a metaphilosophical position, that the freewill-determinism puzzle is one of those antinomies of thought that we are incapable of resolving, along with the mind-body and infinity puzzles. For him, the freewill-determinism puzzle will always dog practices of holding people morally responsible, practices that we nevertheless cannot imagine dispensing with. Because we cannot dispense with such practices, a retributivist regarding criminal punishment need not resolve or even take sides on the freewill issue.22

20See Daniel Clement Dennett, Freedom Evolves 9–13 (2003) (providing a naturalized, evolutionary account of these capacities without using the term “compatibilism”).

21See, e.g., Wallace, supra note 16, at 87–95. See also Victor Tadros, Criminal Responsibility

67–70 (2005).

22Alexander’s position is thus that neither determinism nor indeterminism can provide a satisfactory account of moral responsibility, and together they appear to exhaust the possibilities. We cannot, therefore, comprehend the bases of moral responsibility. On the other hand, we cannot comprehend the possibility that we are not morally responsible. Reflecting on ourselves choosing what to do, we find that the reasons for the chosen