VOL.2 NO. 3 (MARCH, 1992) PP. 52-53

NOT JUST DESERTS: A REPUBLICAN THEORY OF CRIMINAL JUSTICE by John Braithwaite and Philip Pettit. New York: Oxford University Press, 1990, 227 pp. Reviewed by James P. Levine , Department of Political Science, Brooklyn College, City University of New York.

This deep, important book explicating a normative theory of criminal justice requires careful study; it is not bedtime reading. It effectively challenges a current vogue among both scholars and practitioners -- the idea of just deserts; and it does a good job of substituting a new approach which the authors call "republican" theory. The authors, a criminologist and a philosopher, combine their considerable expertise to provide a well-reasoned and empirically grounded argument that the promotion of social freedom ought to be the primary goal of the criminal justice system.

They argue in favor of consequentialism -- the idea that policy should be guided by targets; they denounce deontological theories such as deserts guided by constraints. But they eschew the goal of crime control ("preventionism") as being simultaneously too ambitious and too limiting--a misguided version of consequentialism. In its stead they come up with the notion of "dominion"-seeking, the idea that policies should be geared to promoting the autonomy of all. The "civic freedom" worthy of concern is not only that of victims and potential victims of crime but also that of the general citizenry and even the lawbreakers. Because standard punishments such as imprisonment are by their very nature restrictive and invasive, they are to be used as a last resort only when they demonstrably contribute to the enhancement of other people's dominion and ward off worse trammeling of people's rights than is being encountered by the criminals being punished.

It is not just punishment which is eschewed by the authors; they argue for an overall reduction in the reach of the criminal justice system. Theirs is a minimalist approach: the less criminalizing, patrolling, investigating, adjudicating and incarcerating the better. They urge a "decremental" strategy--gradual stripping down of the inherently oppressive criminal justice system until a point is reached where further retrenchment results in greater risk of crime and greater harm to individuals. Because the authors' interpretation of policy research leads them to be skeptical about the potential effectiveness of the classic approaches to crime control such as deterrence, incapacitation and rehabilitation, and because they think that most serious crime is forestalled by people's moral inhibitions rather than formal controls, they reach the conclusion that severe cutbacks in laws, police, courts and prisons can be sustained without much sacrifice in society's well-being.

What makes this book so compelling is that normative ideals are operationalized in the context of a hard-nosed understanding of both criminal behavior and the working realities of the criminal justice system, what the authors call "realpsychologie" and "realpolitik." They show how the law in action inevitably makes a mockery of the norm of retribution: not only do low apprehension rates give many offenders total impunity, but in the authors words "where desert is greatest, punishment is least" (p. 182, italics in original). And they recognize that the horrors of our prison system destine those incarcerated to fates far worse than envisioned by those urging more and longer prison sentences. It is this realism about punishment which gives credence to their call for other priorities -- greater attention to restitution for crime victims, more extensions of civil liberties, additional restrictions on law enforcement personnel, and the exercise of humanity towards prison inmates.

The book has flaws. There are conceptual oversimplifications, such as the improper tendency to equate just deserts with stern retribution. There are inconsistencies: in the face of concern about too much police surveillance, proactive policing is advocated under some circumstances including the shadowing of presumably dangerous "potential offenders" (p. 113); "judicial creativity in sentencing" is encouraged (p. 127) despite the authors' legitimate fears about unchecked power; the minimalism theme is soft-pedaled when the target of law enforcement is business crime. There are occasional departures from empirical reality, such as the somewhat panglossian embracing of reprobation and "shaming" as strategies for dealing with criminals many of whom have a deep-seated amorality approaching nihilism. And although the authors are quite aware of political realities, especially the power of the "law and order lobby," their call for dramatic decarceration seems far-fetched -- well outside the "policy space" of the present or the foreseeable future. But such shortcomings are inevitable in any book whose agenda is as ambitious as NOT JUST DESERTS.

The greatest tribute I can pay to this book is that it has caused me to rethink my own position on the just deserts idea. In light of the pathetic ineffectiveness of both orthodox and innovative criminal justice policies attempting to curb crime, I had been moving to the position that the goal of crime control be largely abandoned in favor of attempts to do justice. The authors not only raise profound doubts about the normative justifications of punishment and the feasibility of operationalizing justice, but they argue persuasively that pursuit of retribution will INEVITABLY result in significant class discrimination -- heavy sentences for poor muggers and light sentences for more affluent white collar offenders who may well represent a greater social menace. If crime control is largely futile and doing justice an illusion, maybe Braithwaite and Pettit's alternative emphasis on protecting the liberties of all makes sense. Maximizing "dominion" through "decrementalism" is an iconoclastic idea well worth pondering, and this little book that presents the idea ever so cogently is therefore well worth reading.

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