ABSTRACT
Turning critically to criminal law theory, I argue that standard criminal law conceptions of free will create serious problems for any effort to explain or to justify our current doctrine and practices on the basis of a retributive theory of punishment. In short, retributive justice grounds punishment in blameworthiness and desert, yet the criminal law’s criteria of free will call for the punishment of actors who may be neither blameworthy nor deserving of punishment. An authentically retributivist criminal law would have to be much more demanding than ours is about what counts as free will. If we are to salvage the prospects for justifying anything resembling contemporary AngloAmerican criminal law doctrine, we must look away from retributive theory. This is true even were we to set aside the excesses of overpunishment, excesses that are rampant in the United States and which would be rejected by any reasonable retributive theory. Apart from excessive sentences for many crimes, including violent crimes, as well as the questionable practice of incarcerating people convicted of a range of nonviolent and even trivial offenses, the criteria of legal guilt and punishment are not well calibrated to
judgments of blameworthiness and desert. This does not necessarily mean that less blameworthy and less deserving criminal offenders should be thought to have lacked a reasonable opportunity to have avoided their offenses. But it does prompt us to understand the basis for their punishment, when it can be justi ed, in nonretributive terms. This should have signi cant consequences both for how we regard criminal offenders and how we ought to understand the ‘expressive function’ of punishment.
