ABSTRACT
Chapter 5, “The Two-Tiered Model of Punishment,” explains how consequentialism and retributivism can be combined in a mixed theory. The two-tiered model does not prioritize one approach over the other. Using the criminal justice system in the United States as an illustration, this chapter shows how the two theories of punishment inform separate powers within a legal system. The legislature identifies crimes and sets statutory penalties based on consequentialist concerns, according to which rules best preserve the public order and accomplish our collective aims; and the criminal judiciary finds people innocent or guilty and assigns penalties based on retributive concerns, according to what they deserve. Police and prosecutors are then constrained by rule-consequentialism. They carry out the will of the legislature in enforcing the law and trying the accused, within the constraints set out by primary and secondary law, even if violating those rules in specific instances would seem to preserve the state more effectively. The chapter concludes by explaining how the two-tiered model satisfies the five conditions that Jeffrie Murphy claims any theory must meet to be a viable theory of punishment.
