Modal Retributivism: A Theory of Sanctions for Attempts and Other Criminal Wrongs

Anthony M. Dillof, Wayne State University Law School

Abstract

How much punishment, in terms of size and severity, should a person get committing for a given offense? Operating in a deontological framework, the article attempts to answer the question of criminal punishment severity in a unified, principled manner.

There is a wide-spread intuition that when it comes to figuring out what punishment a person deserves, harm matters. The idea that Aharm matters@ is the basis for harm-based retributivism. The article begins by critiquing harm-based retributivism. Proponents of harm-based retributivism believe that attempts should be punished less than completed offenses, but how much less? One-half? Three-quarters? The problem with harm-based retributivism, it is argued, is that it cannot be extended in a principled manner to inchoate offenses, such as attempts. A possible response that in cases of attempts an actor should be punished based on not the harm, but the risk he creates, is considered. This approach, however, it is found wanting because it cannot be applied consistently to offenses of reckless harm-causing and reckless risk-creation.

In response to these criticisms, the article presents an alternative to both harm-based and risk-based retributivism--modal retributivism. The essence of modal retributivism is that under it, the fact that harm results from wrongful conduct is not relevant to the severity of the sanction deserved, as it is under harm-based retributivism, but rather, it is relevant to the sanction's mode as precatory (should be imposed) or permissive (may be imposed). Thus, those who commit substantive crimes should be punished; those who merely attempt may be punished. With this theory in place, punishment levels for inchoate crimes, such as attempts and reckless endangerment, are recommended. Next, punishment levels for crimes of passion and negligence are considered with an eye toward setting punishment discount levels in a nonarbitrary manner.