Criminal Law Commons^™

A Distributive Theory Of Criminal Law, Aya Gruber

William & Mary Law Review

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment―retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in …