ABSTRACT
A few philosophers, apparently persuaded that desert requires punishment, have denounced various failures to impose punishment, for example, the dispensation of mercy, as incompatible with justice. A great deal of confusion can be avoided by deciding what would count as a comprehensive justification of the actual imposition of punishment. Theorists have long debated whether a justification of punishment would show its imposition to be obligatory or permissible. Sometimes punishment is thought to require a justification for one simple reason: It is an intentional infliction of a hardship, a deliberate deprivation of one or more rights. Theorists lack sufficient knowledge about how particular impositions of punishment affect the crime rate to conclude that many offenders should be spared their deserved punishments on the ground that this “extra-desert” component is absent. The perceived advantages of breaking criminal law might be greater than the severity of the punishment that would be allowed under a principle of proportionality.
