Kenneth W. Simons
Boston University School of Law Working Paper 00-08
Much of the appeal of retributive theories of criminal law flows from what they are not. Most importantly, they are not utilitarian, consequentialist, deterrence-oriented theories. They do not allow punishment of the innocent in order to serve a large social good. They do not permit selecting an offender for extremely harsh punishment by lottery, even if this would expend fewer overall social resources than imposing lower and proportionate punishment on all similar offenders. More generally, they would not permit exemplary punishment of an offender that is disproportionate to his just deserts, even if this would serve a significant deterrent function or would appease public anger. In short, retributivists would place significant limits on the state's ability to promote social welfare at the expense of fairness to the individual defendant.
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