Legal Studies Research Paper Series

Research Paper No. 12-085

April 2012

You Got What You Deserved

Larry Alexander

This paper can be downloaded without charge from the

Social Science Research Network Electronic Paper Collection:
http://ssrn.com/abstract=2046226

Electronic copy available at: http://ssrn.com/abstract=2046226

 01-25-12-1

You Got What You Deserved

by
Larry Alexander*

The Philosophy of Criminal Law1 collects 17 of Doug Husak’s articles on legal theory, 16

of which have been previously published, spanning a period of over two decades. In sum, these

17 articles make a huge and lasting contribution to criminal law theory. There is much wisdom

contained in them; and I find surprisingly little to disagree with, making my job as a critical

reviewer quite challenging. Most of the points on which Doug and I disagree can be found in my

other published work in this field, so I will have little to say about them, except where they

illuminate those few points of disagreement that arise in the particular essays I discuss. Most of

what I will say will be in accord with Doug’s views and will principally explore their wider

implications.

The 17 essays in the book cover too many and too varied topics for one review essay.

Therefore, I will focus on just three of them: “Rapes Without Rapists: Consent and Reasonable

Mistake” (co-authored by George C. Thomas);2 “Mistakes of Law and Culpability”;3 and

“‘Already Punished Enough.’”4 Although I generally agree with the upshots of Doug’s

arguments in these chapters, I think the issues they raise are worth further exploration.

I. Rapes Without Rapists

In this essay, Doug and George focus on the question, what makes a mistake regarding

whether a person is consenting to sex reasonable or unreasonable? That question for them is the

pivotal question in determining whether one who has sex with a nonconsenting person should be

*
Warren Distinguished Professor, University of San Diego School of Law. I thank Adam Kolber for some helpful
conversations and correspondence.
1
DOUGLAS HUSAK, THE PHILOSOPHY OF CRIMINAL LAW (Oxford: Oxford Univ. Press, 2010).
2
11 PHILOSOPHICAL TOPICS 79 (1990).
3
This essay has not been previously published.
4
18 PHILOSOPHICAL TOPICS 79 (1990).

Electronic copy available at: http://ssrn.com/abstract=2046226

criminally punished. Their essay primarily reports empirical findings about when and how

consent and nonconsent are expressed. These findings in turn bear on how jurors should

determine whether a defendant’s mistake about whether he had obtained consent was a

reasonable mistake.

Now, for reasons I have elaborated elsewhere, I do not think the standard for

criminalizing nonconsensual sex when the defendant mistakenly believes the sex is consensual

should be whether defendant’s mistake was “reasonable.” “Reasonable” implies a negligence

standard, and I do not regard negligence as a form of culpability.5 Instead, I believe the proper

test for criminality should be whether the defendant’s estimate of the risk that the sexual partner

is not consenting is so high that he is not justified in proceeding with the sex until he investigates

further.6 Obviously, if he believes he is receiving consent, then he must believe the risk of

nonconsent is less than fifty percent. But it could be true that even if the perceived risk of

nonconsent is less than fifty percent, if the perceived risk is above a certain level, then given the

relative costs and benefits of further investigation, it will be reckless for the defendant to proceed

to have sex, and defendant will be culpable for doing so. But his culpability will be based on the

unreasonableness of his conduct, not on the unreasonableness of his mistaken belief. Beliefs

themselves, even if mistaken, are not culpable. They just are.

What I find interesting in this essay, aside from its recital of the empirical findings on

consent to sex, is its brief, three-page section on the ontology of consent.7 Doug and George

quite rightly argue that before one can determine whether certain behavior expresses consent,

one has to first know what consent is. Is it a mental state? Is it a mental state plus a certain overt

5
See LARRY ALEXANDER AND KIMBERLY KESSLER FERZAN (WITH CONTRIBUTIONS BY STEPHEN MORSE), CRIME
AND CULPABILITY: A THEORY OF CRIMINAL LAW (2009), ch. 2.
6
See id.
7
HUSAK,supra note 1, at 236–39.

Electronic copy available at: http://ssrn.com/abstract=2046226

act that is meant to express that mental state? Or is it just certain conduct irrespective of

whatever mental state underlies it?

Doug and George reject this last possibility. They say, “Consent must be at least partly a

mental state.”8 They go on to endorse, albeit tentatively, the second, hybrid view of consent’s

ontology, that is, that consent is partly a mental state and partly an act meant to express that

mental state.9 And they never take a stand on what exactly the mental state is that constitutes the

mental state half of the hybrid view. They believe they can be agnostic about this because their

principal quarry is what behavior counts as sufficient evidence of consent so as to render a

mistaken belief about consent “reasonable.”

I think, however, that they should have paid more attention to the mental state. For one

thing, it is hard to see how we can know what counts as an expression of consent if we do not

know what consent is; and on the hybrid view of consent, we cannot know that without knowing

what the mental state is that the behavior is supposed to express. Moreover, I believe that once

we focus on the mental state half of the hybrid view, we will inevitably be led to reject the hybrid

view itself in favor of the pure mental state view.

I have written about the ontology of consent elsewhere.10 In those pieces I endorse the

mental state view, and I argue, against other versions of the mental state view that make

intending the consented-to act or acquiescing in it the relevant mental state, that the mental state

of consent is that of mentally waiving any objection to having one’s moral or legal boundaries

crossed. One cannot intend another’s crossing of one’s moral or legal boundary, for one cannot

8
Id. at 238.
9
Id. at 238–39. Doug, in a later essay, appears to have moved away from the hybrid accouint and more in the
direction of the mental state view that I favor. See Douglas Husak, The Complete Guide to Consent to Sex: Alan
Wertheimer’s Consent to Sexual Relations, 25 LAW & PHIL. 267 (2006).
10
See Larry Alexander, The Moral Magic of Consent (II), 2 LEGAL THEORY 165 (1996); Larry Alexander, The
Ontology of Consent (unpublished).

3
intend another’s act. And acquiescence can occur from a sense of the futility of objecting

without waiving one’s moral or legal objection.

Once we get a handle on the mental state side of consent, we can better assess the

evidence of its presence. Not only that, but we can now ask why we require additionally that it

be expressed in some sort of verbal or nonverbal conduct. For although it is true that no one else

can detect the presence of a person’s mental state except by reference to that person’s acts,

verbal or nonverbal, or omissions (which themselves can be strong evidence of mental states in

various circumstances), the evidence someone possesses of another’s consenting mental state

bears on the recklessness of his conduct—his culpability—but not on whether he is acting

without consent.

Just as someone can lack consent but believe he has received it, someone can possess

consent but believe he lacks it. In the latter case, the person who proceeds has not engaged in

wrongdoing. He has not acted without consent. He is culpable, however. He has recklessly

endangered the interest that consent protects. In the context of sex with the (mistaken) belief in

nonconsent, he has essentially committed attempted rape. Conversely, when he has not received

consent—because the person whose consent is needed does not possess the relevant mental

state—he has committed the wrong but may or may not be culpable. If he possessed strong

evidence that the consenting mental state existed, then he was not reckless in acting as if he

possessed consent.

The key here is to pry apart the question of wrongdoing—the act in the absence of the

required mental state—from the question of culpability. It is a four box matrix. If the mental

state of consent is present, and the defendant has evidence that convinces him to the requisite

degree of certainty that the mental state is present, we have neither wrongdoing nor culpability.

4
If the mental state is present, but defendant lacks the requisite degree of certainty, we have

culpability but no wrongdoing. If the mental state is absent, we have wrongdoing. Whether the

defendant is culpable for the wrongdoing, however, will turn on how certain he was that the

required mental state was present. (Remember, I think the “reasonableness” of his belief, as

opposed to his degree of certainty, should be immaterial.)

All of this should be easy enough to see if we turn from sex to the taking of property,

another area where consent is a material element. Suppose Sally does not want Susie invited to

her party, and Sally tells Cissy this. And suppose Cissy, as a practical joke, tells Susie the

opposite: that Sally has asked her to invite Susie to Sally’s party. If Susie shows up at Sally’s

party, she is technically trespassing even before Sally tells her to leave; but she is not culpable

and surely should not be criminally punished (assuming, that is, that Cissy was a source of

information whom Susie trusted). On the other hand, if Sally had asked Cissy to invite Susie to

Sally’s party, and Cissy, maliciously, tells Susie that Sally is not inviting her, then if Susie, angry

with Sally, shows up at the party, she is not trespassing—she has Sally’s consent to be there—

but she is culpably attempting to trespass and is punishable.

The mental state view of consent makes all this clear. For on this view, the various

expressions of consent are not even partially constitutive of consent but are instead exactly what

calling them expressions of consent implies, namely, that they are expressions of something that

is independent of them and of which they are but evidence. And that something can only be a

mental state.

II. Mistake of Law and Culpability

This essay is the one unpublished essay in the book. In it, Doug asks whether one who

commits a criminal offense, not realizing that what he is doing is a criminal offense, should be

5
punished for that offense notwithstanding his ignorance of that particular criminal law. Doug

asks that question from a perspective that he and I share, the perspective of a retributivist. The

relevant question for us is whether the offender deserves to be punished despite his ignorance of

the criminal law. Is such a person truly culpable?

I should note at the outset that the justification for punishing those who act in ignorance

of the criminal law is not necessarily easier to come by if one is a consequentialist about

punishment rather than a retributivist. For the typical consequentialist stories for why ignorance

of the criminal law is not exculpatory are not very convincing. Giving people an incentive to

learn the criminal law is of dubious consequential value. The criminal code of my one state,

California, fills a volume as thick as the Shanghai phone book. And, of course, I am also subject

to the criminal law of the United States and additionally to the criminal laws of every state and

every country I visit. I actually know only a tiny fraction of these laws, even though I teach

criminal law.11 It is ludicrous to suppose it would be socially valuable for people to spend their

free waking hours learning the criminal laws of the various jurisdictions into which they might

venture. And as for the consequentialist point that it may be difficult to prove that a defendant

who claims ignorance of the law he violated is dissembling, that point proves too much: for it is

equally as difficult (or really, in most cases, equally as easy) to prove a defendant is dissembling

when he claims an ignorance of fact or law that is exculpatory.

In any event, Doug and I are not consequentialists. And Doug quickly disposes of the

maxim “ignorance of the law is no excuse.” In a real sense, the maxim is question-begging, as

we need to know why it is not an excuse (or a justification, or a denial that the offense has

occurred).

11
The federal criminal code alone contains over 4400 different criminal prohibitions; and the federal government is
one of limited legislative powers!

6
 Doug also deftly rebuts the idea that we have either a legal or moral duty to know the

criminal law (remember the Shanghai phone book). Nor would the existence of such a duty

justify punishing those whose ignorance represented a breach of that duty under the criminal law

of which they were ignorant. (Their culpability, if any, for violating the duty to know the

criminal law would not necessarily match the culpability of persons who violate the specific

criminal law in question but who are not ignorant of its existence.) Indeed, theoretically, if there

were a legal duty to know the criminal law, one could be punished for violating that duty even if

one never violated any specific criminal law.

There are all sorts of problems with the doctrine, which has very few exceptions, that

mistakes about the content of the criminal law are not exculpatory. Doug notes in passing that

some of us have challenged the doctrine’s distinction between mistakes regarding the content of

the criminal law and mistakes of fact that are material according to that content. Although I have

challenged the mistake of law/mistake of fact distinction primarily in the context of inculpatory

mistakes (i.e., the law of attempts), the challenge can be leveled at that distinction in the context

of exculpatory mistakes as well.12 For instance, suppose the law says “No deer hunting before

September 18,” and Jim reads the 18 as 16 due to his astigmatism and then proceeds to hunt deer

on September 17. He is in violation of the law’s prohibition, and he is ignorant that he is in

violation. But is his ignorance ignorance of law or ignorance of fact? It is both, since the law

consists of facts, such as what date is in the statute books, what did the legislature intend by

stating September 18, and so on. So Jim’s mistake is both one of law (is my conduct

prohibited?) and one of fact (what date appears in the statute?). Similarly, if Jim had read the

12
See Larry Alexander, Inculpatory and Exculpatory Mistakes and the Fact/Law Distinction: An Essay in Memory
of Myke Bayles, 12 LAW & PHIL. 33 (1993); Larry Alexander, Facts, Law, Exculpation, and Inculpation: Comments
on Simons, 3 CRIM. L. & PHIL. 241 (2009).

7
date in the statute correctly but read his calendar incorrectly as September 19 rather than

September 17, his ignorance of the day’s date (fact) would also be ignorance of the legal status

of his conduct. He would answer the question, “Does the law prohibit hunting deer today?,” as

“no” when the correct answer is “yes.” His mistake of fact would cause him to make a mistake

of law.

Not only is it problematic to deem mistakes of fact exculpatory but refuse to deem

mistakes of law exculpatory, but the proposition that ignorance of the law is not exculpatory is

itself misleading. For so-called “other law” mistakes can be and frequently are treated as

exculpatory. Here are some examples. Suppose someone has removed the wood paneling that

he had previously purchased and installed in an apartment he is renting, and he is subsequently

charged with “willfully destroying the property of another.” His claim that he did not realize that

the paneling had become, under the law of fixtures, the property of his landlord and was no

longer his, is a potentially exculpatory claim.13 For, it is said, his ignorance was not of the

criminal law, which ignorance would not be exculpatory, but was ignorance of property law,

which law affects how the criminal law applies. Likewise, if the criminal law defines rape as

sexual contact without consent, and consent is defined in another, non-penal section of the state’s

laws, then a defendant who makes a mistake about what counts legally as consent may not be

guilty of rape. His ignorance of law is, arguably at least, not ignorance of the criminal law.

Finally, if the mythical Lady Eldon is charged with failing to declare a dutiable item by failing to

declare her French lace when she goes through customs, she may be exculpated if the list of

currently dutiable items is one published monthly by the customs bureau. Her mistake was one

of “other law,” not criminal law.

13
See Regina v. Smith (David), 2 Q. B. 354 (1974).

8
 Or so the story goes. But the distinction between mistakes of the criminal law and

mistakes of “other law” is illusory. The criminal law pertaining to destruction or theft of

property could be conceptualized to contain all of property law that bears on what is mine and

what is thine. The criminal law of rape could be conceptualized to incorporate the law defining

consent. The criminal law prohibiting smuggling could be conceptualized to incorporate the

current list of dutiable items. And so on. If that is correct, then what looks from one perspective

like an “other law” mistake from another perspective looks like a mistake of criminal law.

The bottom line, therefore, is that the criminal law can be conceptualized as containing

both all laws and all factual matters that bear on its correct application. And given that

conceptualization, ignorance both of other laws and of factual matters turns out to be ignorance

of the criminal law. If the former types of ignorance can be exculpatory, then so too should be

the latter. For they both amount to the same thing.

Doug neither endorses nor rejects my deconstruction of the “mistake of law/mistake of

fact” and “mistake of criminal law/mistake of other law” distinctions. His favored approach is

to throw in a culpability assessment of the defendant’s mistake of criminal law along with

assessments of defendant’s culpability vis-à-vis each of the elements of the criminal offense.14

Presumably, for example, we could have a defendant who acted purposely with respect to a

conduct element, recklessly with respect to the presence of a material circumstance, and

negligently with respect to whether his action was violative of a criminal statute. We would then

take these varying culpability elements and come up with an overall culpability assessment.

I think such an approach is hopeless. For the culpability with which one violates a

criminal statute is of a different kind from the culpability, if any, that one displays by being

ignorant of that statute. Think, for example, of trying to “combine” the culpability of taking
14
See HUSAK, supra note 1, at 266–71.

9
another’s property with the culpability of not realizing that there is a criminal prohibition of

theft, or of trying to “combine” the culpability of purposefully smoking marijuana with the

culpability of believing, erroneously, that smoking marijuana is legal.

The problem of the treatment of ignorance of the criminal law—and Doug is surely

correct that it is a problem—cannot, I believe, be solved so long as there are proxy crimes,

crimes that are defined by criteria that do not perfectly map onto the underlying harms that the

crimes are intended to avert. For with proxy crimes, a defendant can commit them and yet not be

culpable with respect to those underlying harms.15 And when such a defendant is also ignorant

of the proxy crime he is committing, then he is in reality not culpable at all. His ignorance of the

criminal law should be exculpatory.16

Kim Ferzan and I have argued for dispensing with proxy crimes and for punishing those,

and only those, who act with insufficient regard for others’ legally protected interests.17

Ignorance that one should have more regard for others’ interest than one has displayed would not

be exculpatory, or so we argued.

Our approach would go a long way towards eliminating Doug’s problem. Unfortunately,

it would not go all the way. We might still need rules defining when one has a duty to act

(omission liability), rules the ignorance of which would not necessarily indicate culpability.18

And although it is true in most cases that, say, not knowing it is wrong to kill others is not

exculpatory ignorance, not knowing that it is wrong to kill others to vindicate one’s family’s

honor is a less clear case for culpability, and likewise for not knowing it is wrong (if it is) not to

15
See ALEXANDER AND FERZAN, supra note 5, at 66–67, 309–13.
16
See id. at 312.
17
See id. at 295–321
18
See Larry Alexander, Criminal Liability for Omissions: An Inventory of Issues, in S. SHUTE AND A. SIMESTER,
eds., CRIMINAL LAW THEORY : DOCTRINES OF THE GENERAL PART (2002).

10
retreat from a situation where one would have to employ deadly force in self defense.19 Finally,

there is the deep mystery over why, if the psychopath’s inability to see any reason for concern

for others’ interests is exculpating—as many so see it20—the nonpsychopath’s inability to see

that concern for others’ interests is a stronger reason than his reason for acting against others’

interests is not also exculpating.

III. Already Punished Enough

Of all the wonderful selections in Doug’s collection, my favorite is the last one, “Already

Punished Enough.” It’s my favorite both because of the quite thoughtful and balanced approach Doug

takes to the topic, and because underlying the topic are some of the deepest issues raised by criminal

punishment. It is the inspiration for the title of this review.

The basic question addressed by Doug’s essay is, how much should a given criminal be punished

for this crime? I, like Doug, approach this question from the perspective of a retributivist —of one who

believes that how much a criminal should be punished depends upon how much punishment he

deserves by virtue of his commission of a given crime in whatever were the circumstances

surrounding its commission. My interest in this question of “how much” is exclusively a

retributivist’s interest, not a consequentialist’s interest.

The “how much is deserved” question has many facets, some of which have been

copiously debated. Do results affect desert, or does only culpability do so? Does the purpose to

cause harm always make an act more culpable than one where harm is foreseen as likely but is

not intended, even if the actor with purpose realizes his act has little chance of success? I have

19
See, e.g., Model Penal Code, § 3.04(2)(b)(ii) (“The use of deadly force is not justifiable . . . if . . . the actor knows
that he can avoid the necessity of using such force with complete safety by retreating . . . .”).
20
See, e.g., David Shoemaker, Moral Address, Moral Responsibility, and the Boundaries of the Moral Community,
188 ETHICS 70 (2007); Peter Arenella, Convicting the Morally Blameless: Reassessing the Relationship between
Legal and Moral Accountability, 39 U.C.L.A. L. REV. 1511 (1992). See also ALEXANDER and FERZAN, supra note
5, at 155–56.

11
taken positions on these two questions—“no” and “no”—but these questions are not the

questions Doug addresses in “Already Punished Enough,” nor are they my focus in this review.

Nor is Doug concerned in the essay with the difficult questions of ordinal or cardinal

desert. Is rape a worse crime than aggravated battery, deserving of more punishment, other

things being equal? And what is the punishment that rape deserves? One year imprisonment?

Five years? Twenty years? Death? Again, these questions, as important as they are, are not

Doug’s focus in the essay nor mine in this review.

Doug’s focus is on those criminals who suffer greatly from the humiliation and stigma

consequent on their having been convicted of a crime. Doug uses as examples a highly visible

rabbi, one Dr. Bergman, convicted of Medicaid fraud, and Leona Helmsley, a hotel tycoon

convicted of tax fraud. Because of their high status and visibility, their convictions caused them

to suffer public vilification and, as a consequence, considerable humiliation, much more than

would similar convictions of less prominent individuals. Because of this, at sentencing their

lawyers argued against their imprisonment on the ground that they had already been punished

enough. The judges in those cases rejected the requests for leniency, and the public generally

concurred.

Doug, however, thinks that the “already punished enough” pleas for leniency should have

been given a more serious and sympathetic consideration. His argument, boiled down to its

essentials, is that stigma is an important component of retributive punishment, but the amount of

stigmatic harm a defendant receives as a consequence of a criminal conviction is largely a

product of forces beyond the state and beyond the state’s ability to control. Doug concludes that

the state should reduce the hardship component of punishment (usually, the term of

12
imprisonment or the amount of the fine) if the defendant has suffered excessive stigmatic harm—

in other words, if he has “already suffered enough.”

There are two deep problems lurking here. I will call them the “boundary problem” and

the “meshing problem.” Although I have said that these are two problems, I actually will argue

that they are related—and on one view of giving people what they deserve, just two aspects of a

single problem. But it will be helpful to discuss them separately before showing the relationship

between them.

The Boundary Problem

The boundary problem is the problem of distinguishing the suffering that is part of the

defendant’s punishment from that which is external to it. Doug’s discussion of stigmatic harm

deals with this boundary problem. But it has many facets, and it has been the subject of an

extended recent debate in the literature between Adam Kolber and a passel of his critics.21

Kolber takes an expansive view of retributive punishment’s boundaries, while his critics

take a narrower view. For example, if the defendant is a claustrophobe, whose confinement in a

prison cell is pure psychic torture, while his co-defendant, who committed the same crime, finds

prison life rather pleasant, Kolber argues that their identical terms of imprisonment are in fact

radically unequal punishments.22 Similarly, if a defendant has a family whom he sorely misses,

but his co-defendant is a loner with no close ties outside of prison, then arguably they are being

21
See Adam J. Kolber, The Subjective Experience of Punishment, 109 COLUM. L. REV. 182 (2009) (hereinafter
Subjective Experience); Adam J. Kolber, The Comparative Nature of Punishment, 89 B.U. L. REV. 1565 (2009)
(hereinafter Comparative Nature). For criticism, see Kenneth W. Simons, Retributivists Need Not and Should Not
Endorse the Subjectivist Account of Punishment, 109 COLUM. L. REV. SIDEBAR 1 (2009); Miriam H. Baer,
Evaluating the Consequences of Calibrated Sentencing: A Response to Professor Kolber, 109 Colum. L. Rev.
SIDEBAR 11 (2009); Dan Markel & Chad Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to
Retributive Justice, 98 CAL. L. REV. 907 (2010); David Gray, Punishment as Suffering, 63 VAND. L. REV. 1619
(2010).
22
Kolber, Subjective Experience, supra note 21, at 183-84.

13
punished unequally even if their prison terms are identical. Or if corporal punishment is inflicted,

the defendant with a thin skin and low pain threshold suffers more punishment per lash than one

with a thick skin and high pain threshold. Likewise, a $10,000 fine is a far greater punishment

for a blue collar worker than for a billionaire.

Kolber’s point can be seen most clearly in this example: Suppose almost everyone in the

society detests the smell of hydrogen sulfide. So the preferred form of punishment for crimes is

to subject convicted criminals to smelling hydrogen sulfide gas for lengths of time that vary with

the gravity of the offense. But suppose one individual loves the smell of hydrogen sulfide.

Indeed, he seeks it out whenever he can. If he and another defendant commit a crime, and both

are punished with two hours of smelling hydrogen sulfide, clearly the former defendant is not

being punished at all. If anything he is being rewarded.23

Kolber’s critics have responded by arguing that the amount of punishment should be

gauged by what the state formally prescribes, not by how much pain it actually inflicts on the

defendant.24 Two hours of hydrogen sulfide is the same punishment when given to two

defendants no matter how differently they react to it. Likewise for five years in prison, forty

lashes, or $10,000 fines. Even if Paris Hilton is miserable in a jail cell and an orange jumpsuit,

while her cellmate calls jail “home,” they are receiving the same punishment. The same is true of

Lindsay Lohan, sentenced to house arrest for a drug offense, who loves to go out and party with

friends and is therefore miserable at home by herself, and an antisocial agoraphobe who receives

the same sentence for the same crime.

23
See id. at 203-04 (“[D]epriving opera-haters of the right to listen to opera does restrict their liberties; it does not,
however, constitute punishment.”)
24
Simons, supra note 21, at 4; Markel & Flanders, supra note 21 at 907-15; Gray, supra note 21, at 1620-27.
Kolber, Subjective Experience, supra note 21, at 183-84.

14
 Doug wrote his essay long before the current debate between Kolber and his critics, so he

doesn’t address the boundary problem as a whole. Nonetheless, his discussion of stigmatic harm

seems to align him with Kolber.25 If the point of punishment is to make the defendant suffer for

his crimes, then the suffering is the punishment; and punishment commensurate with desert

requires suffering commensurate with desert.

The Meshing Problem

What I am calling the meshing problem is one that is seldom noted in the literature, yet

one that I regard as of great significance to retributivism. Stated succinctly, the meshing problem

is how to insert and calculate deserved punishments in a legal system that does not, in general,

base entitlements on desert, positive or negative.

Take Jane, whose whole life has been a succession of undeserved hardship. Ill health,

bad parenting, and unlucky choices have left her, despite her admirable work ethic, prudence,

and altruism, in poverty, alone, and childless. If Jane were to commit a criminal offense, should

her retributive desert take into account the fact that her condition is already far worse than she

deserves?26

Similarly, consider John, whose whole life has consisted of selfless good deeds, for

which he has not been rewarded. If he were to commit some crime, a black mark on his moral

25
See also Douglas N. Husak, Retribution in Criminal Theory, 37 SAN DIEGO L. REV. 959, 972 (2000).
(“[R]etributive beliefs only require that culpable wrongdoers be given their just deserts by being made to
suffer….”).
26
See Gertrude Ezorsky, The Ethics of Punishment, in G. Ezorsky, ed., PHILOSOPHICAL PERSPECTIVES ON
PUNISHMENT (1972), at xi, xxvi (“[A]ssessment of a criminals’s desert after an offense would require that one
balance all of his moral wrongs against the suffering of his entire life.”) See also Kolber, Comparative Nature, supra
note 21, at 1588 n.63

15
ledger, should all those positive entries on that ledger mitigate or perhaps entirely eliminate his

negative desert?

And compare Jane and John with Frank, a lazy, self-centered, misanthropic sort who has

nonetheless enjoyed undeserved great wealth and fame. If he were to commit the same crime as

Jane and John, should his deserved punishment be greater than theirs?

Or if Jason has served a five-year term of imprisonment for a crime he did not commit,

and he now commits a crime that ordinarily would deserve five years imprisonment, should his

undeserved punishment offset his deserved punishment? Should he get, in effect, a five-year “get

out of jail free” card? Or if Jena, on her way to receive the ten lashes she deserves for her crime,

falls and suffers pain equivalent to ten lashes, should her punishment be remitted? Should it be if

she suffers the fall and concomitant pain while committing her crime?

This “meshing problem”—how to insert deserved punishment into a social system that

does not generally allocate “goods” and “bads” on the basis of desert—is a fundamental one for

retributive theorists. Yet, as I said, it has received almost no treatment in the theoretical literature

on retributivism.27

I would also argue that as between the meshing problem and the boundary problem, the

former is the more fundamental of the two. Indeed, I believe that the boundary problem is on one

view just an aspect of the meshing problem. For if all allocations (and re-allocations) of goods

and bads were based on desert, positive or negative, then it would not matter whether an

offender’s extra suffering in prison were counted as part of or as extrinsic to his punishment. For

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Kolber argues that whether or not we accept the whole-life view of retributivism, we must take into consideration
many more factors about the lives of offenders than we do now. According to Kolber, punishment consists of a
change in offender’s circumstances. So an offender who is used to living a life of luxury is deprived of far more
rights to property while in prison than one who comes from more modest circumstances. We cannot measure
amounts of punishment without at least knowing offenders’ conditions prior to punishment. Kolber, Comparative
Nature, supra note 21, at 1566-70.

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if that suffering led him to an overall state that was worse than he deserved based on all of his

virtuous and vicious acts, he would have to be compensated for that in some way to achieve a

balance between his overall, “whole life” desert and his overall welfare. Likewise, if prison did

not cause the offender to suffer, so that he were overall faring better than he deserved, he would

have to have his welfare lowered to the level deserved through some mechanism other than

prison.

The meshing problem is on this view the source of the boundary problem that Kolber and

his critics now, and Doug in this essay then, are grappling with. If vigilantes were to grab

someone and hold him prisoner in a cell for five years on the ground that he was guilty of an

offense, and once released by the vigilantes he were then convicted of that offense by the state,

the boundary question—has he already received the punishment he deserves?—would disappear

if there were no meshing problem. For his overall welfare would be at his deserved level, which

would be all that matters.

Nevertheless, the meshing problem is going to persist and so, therefore, will the boundary

question. The meshing problem will persist, not merely because matching welfare with people’s

overall “scores” on their moral ledgers—the number and magnitudes of their virtuous and

vicious deeds—is both politically and administratively impossible, but because even as a

theoretical position it has a highly counterintuitive implication that one could, by committing

good deeds, earn the ability to commit misdeeds with impunity. It would be as if the current

system of reducing terms of imprisonment based on good behavior in prison—good time

credits—were modified to allow those good time credits to be “banked,” so that if one earned

enough in one’s prior prison terms, one could commit crimes and yet escape prison because

one’s banked credits functioned as a “get out of jail free” card.

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 Of course, it has always been recognized that retributive punishment might be, in some

cases, inadequate as a deterrent. But the ability to have one’s prior undeserved and

uncompensated suffering, or one’s prior unrewarded good deeds, function to cancel completely

otherwise deserved punishment will strike most people as a complete reductio of any theory that

solves the meshing problem by making the allocation of all “goods” and “bads” desert based.

Thus, the meshing problem will remain, and that means the boundary problem of

“Already Suffered Enough” will also remain. Doug is, to my knowledge, the first to have raised

this problem in the contemporary philosophical literature. And we all should be indebted to him

for doing so, a debt we theorists can best repay by thinking more than we have about the

boundary and meshing problems.

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