Can Above-desert Penalties Be Justified by Competing Deontological Theories?

This chapter considers whether, and under what circumstances, abovedesert penalties can be justified under two nonconsequentialist theories: a Rawlsian account of what kinds of penalties would be authorized by contractors in the original position; and a competing-rights theory under which the right of potential crime victims to be protected from foreseeable harm may outweigh the right of an offender not to be punished in excess of his deserts. The Rawlsian model provides at most only limited support for above-desert punishment, and may be too indeterminate to provide a workable and convincing approach to this problem. The competing-rights theory, while perhaps more workable, is problematic; the weighing of victim and off ender rights is difficult, since the interests underlying these rights are often incommensurable, and which way the balance tips may depend on whether the rights of multiple potential victims may be aggregated. It has been argued that the logic of both the Rawlsian and the competingrights theory implies several limiting principles normally associated with utilitarian theory: above-desert penalties, if allowed at all, must be shown to be effective in reducing future victimization, necessary (in the sense that a lesser penalty would be less effective), and proportionate to the harm of the future crimes avoided. These principles, if rigorously applied, would minimize the use of above-desert penalties. However, there is reason to fear that they would not be so applied, particularly under the victims' rights theory, given the strong political appeal of such a theory.