ABSTRACT
The English Criminal Justice Act 1991 was intended to set desert as the dominant principle in sentencing but the failure of the drafters to use language making the explicit led to a serious undermining of the principle in subsequent interpretation and application of the Act by a judiciary who never favored the approach. A conception of desert used by many writers, what might be called “vengeful desert,” is captured in often-quoted biblical phrase: “eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.” The deontological conception of desert focuses not on harm of offense but on the blameworthiness of the offender, as drawn from the arguments and analyses of moral philosophy. Empirical desert, like deontological desert, focuses on the blameworthiness of the offender. But in determining the principles by which punishment is to be assessed, it looks not to philosophical analyses but rather to the community’s intuitions of justice.
