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.
H.L.A. Hart (1)
English and American law leaves much undesirable behavior free of criminal punishment, but it does so, broadly speaking, in two distinct ways: Some undesirable behavior is free of criminal law because no statute defines it as criminal. Other undesirable behavior is criminalized but is unregulated due to discretionary decisions of enforcement officials not to prosecute, either occasionally or consistently. Thus, whether criminal law is an appropriate way to address undesirable conduct is a judgment sometimes made by legislatures and other times made by police, regulatory agencies, and prosecutors.
Legislatures effectively delegate a portion of this set of judgments to enforcement officials. The criminal codes they enact are expansive and designed to be under-enforced; (2) statutory offenses apply to much more conduct than anyone--including the legislators who drafted them--would want. (3) That makes charging discretion pervasive and inevitable, in accord with the common law tradition. (4) Enforcement officials commonly have choices between criminal prosecution and civil sanctions or other non-criminal remedies, and they always have a formal choice between charging and not charging even when criminal charges are provable. In making those decisions, prosecutors (and also, to various degrees, police and regulatory officials) weigh a set of familiar considerations: harm, blameworthiness, deterrent effects, alternative remedies or policy options, and resource constraints. (5) Enforcement discretion is guided by a mix of practical considerations and concerns that are at the core of the theory of criminal law and punishment.
Criminal law theory speaks to all three of the components that create this criminal justice practice--criminalization, enforcement, and punishment. Consequentialist rationales, at least as far back as Beccaria, Blackstone and Bentham, have offered primary organizing premises, and varying strategies, for all three projects. (6) Consequentialism assesses the morality and efficacy of actions by the results they bring about; for criminal punishment, the hoped-for result is typically crime reduction. (7) Utilitarianism, the most prominent version of a consequentialist theory, assesses acts and institutions on whether they produce a net benefit, and this is the typical consequentialist ground by which criminal punishment is assessed--whether gains in crime reduction are greater than the costs of punishment policy. (8) Punishment, on such an account, usually aims to deter, rehabilitate, or incapacitate, so its form should be designed to serve those goals. …