Promoting Equality Through Empirical Desert

According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability. This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory. Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform. Chief among them: it draws from community intuitions, and community intuitions—as the theory acknowledges—are sometimes immoral. In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi Germany), critics have alleged, inter alia, that the theory is self-defeating, uses incongruous justifications, and engages in deceptive and exploitative practices. This Article argues that these critiques are misplaced and overstated and that empirical desert theory can be safely relied on in criminal justice—and beyond. Despite the captivating historical illustrations and the intuitive appeal of immorality objections, this Article demonstrates that empirical desert theory is nearly immune to them, by virtue of previously underappreciated features of its scientific methodology. Moreover, empirical desert theory can do even better. This Article presents an innovative proposal to reconceptualize empirical desert theory by incorporating into its scientific methodology a minimalistic normative commitment to equality and non-discrimination. It provides theoretical support and specific parameters for this reconceptualization, which imbues the theory with qualities capable of further safeguarding it from immorality objections. Furthermore, the Article explores ten additional criticisms of the theory, seriatim, and demonstrates that the proposed reconceptualization substantially strengthens the theory’s ability to overcome them. In its conclusion, the Article outlines two future paths for the theory’s application beyond criminal law, discussing the possibility to “export” its insights to international humanitarian law and its potential to reframe the interaction between criminal law theory and philosophy.