Criminal Law Theory and Criminal Justice Practice
Criminal law theory is characterized by a longstanding debate between two broad positions: retributivism, which posits criminal law is justified by the moral demand to punish culpable offenders in accord with moral desert, and mixed instrumental-moral theorism, which posits that criminal punishment requires both an instrumental purpose and a prerequisite of offender culpability. Without attempting to mediate this ongoing debate, this Article addresses the practical implications for criminal justice institutions and procedure of each of these two dominant, competing accounts of criminal law and punishment. I argue that the mixed theoretical account is so deeply embedded in Anglo-American criminal justice practice that a system oriented toward retributivism would require substantial institutional reform. Piecemeal imposition of some retributivist commitments would conflict with the existing institutional expectation of mixed theoretical commitments in a way that would risk thwarting the goal of having punishment accord with moral desert: a goal which both sides of the debate share.
There are indeed many forms of undesirable behavior which it would be foolish ... to attempt to inhibit by use of the law and some of these may be better left to educators, trades unions, churches, marriage guidance councils, or other non-legal agencies.