Notre Dame Law Review

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Marah Stith McLeod*

Defendants should not be punished more than they deserve.  Sentencing scholars describe this precept against undeserved punishment as a consensus norm in American law and culture.  Yet America faces a plague of mass incarceration, and many sanctions seem clearly undeserved, often far exceeding an offender’s culpability or the seriousness of an offense.  How can a society committed to desert as a limitation on legitimate sanctions allow such undeserved punishments?

Critics argue increasingly that our focus on what offenders deserve is itself part of the problem.  They claim that the notion of desert is too amorphous, malleable, and arbitrary to limit sentences, and instead operates as a moral license for excess.  To avoid overpunishment, they urge us to pay less attention to desert.

The problem, however, is not too much attention to desert.  The real problem is too little attention to desert as a constraint.  Sentencing statutes do not require an explicit determination of the limits of desert.  Most regimes instruct judges to select sentences based on both desert and utility as if they were commensurate concerns.  This tempts judges to exaggerate or ignore the limits of desert when greater severity would advance utilitarian ends, such as incapacitating the defendant or deterring others.  A sentencer’s perceptions of what is good for society as a whole can lead to sentences of virtually unchecked brutality.  Remarkably, the rich existing literature on desert in sentencing has overlooked how our sentencing procedures thus invite sentencing excess.

To prevent undeserved punishment, we must reform the sentencing process.  Sentencing should begin with a cap, a specification of the maximum set by desert, prior to any inquiry into possible future benefits that a penalty might achieve.  No final sentence should exceed that preset upper limit.  Although existing statutory minimum penalties might still require undeservedly severe punishments, this proposed reform would expose their injustice and bolster the case for their repeal.

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© 2023 Marah Stith McLeod.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*  Associate Professor of Law, Notre Dame Law School.  For their insights and ideas on earlier drafts, she thanks Judge Stephanos Bibas, Dan Richman, Richard Epstein, Josh Kleinfeld, Kate Stith, Richard Stith, Jeff Pojanowski, Doug Berman, Ekow Yankah, Jacob Bronsther, Mihailis Diamantis, Will Thomas, Marc Falkoff, Kevin Douglas, Adam Kolber, Corinna Lain, Alice Ristroph, Mark Osler, Michael Cahill, Joe Kennedy, Rick Garnett, Sherif Girgis, Paul Mahoney, Emily Bremer, Anneliese Ostrom, and Maria Maciá.  She is grateful for extraordinary feedback from the participants at Northwestern Law School’s criminal theory roundtable, at CrimFest at Cardozo Law School, and at the Chicagoland Junior Scholars Conference at Loyola University School of Law.  For superb research, she thanks Noah Walusis, Ian McKay, and Cam Hubbard.