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27 Harv. J.L. & Pub. Pol'y 19 (2003-2004)


When I worked for the Manhattan District Attorney's Office in the early 1980s, criminal sentences were consistently and dramatically too lenient. Though those years marked the ebb tide for the rehabilitative ideal of punishment and indeterminate "zip-to-ten" sentences, only career felons and those convicted of the most serious crimes were candidates for the sentences they justly deserved. Hamstrung by apparently silly rules of constitutional etiquette and bureaucratic sclerosis, the police were eclipsed in the mind of the public by the cold-blooded Everyman, bound only by the law of the jungle and some elusive sense of justice. Ultimately, popular demand required greater sentences for career criminals, a corresponding increase in prison capacities, and more police officers patrolling the streets.

I do not mean to criticize the results of the aggressive policies adopted during that period. But I do mean to argue that deterrence and incapacitation are not adequate bases for sentencing those convicted of crimes. Neither, ultimately, is rehabilitation. These goals may contribute to a sound account of punishment–they may be secondary aims of punishment–but none can, on its own, morally justify punishment. Only retribution, a concept consistently misunderstood or entirely forgotten during the time I practiced criminal law, justifies punishing criminals. My aim in this paper is to present retribution as the morally justifying aim of punishment. The need to do so is well demonstrated by a dreary episode from my experience before a certain judge in the New York City Criminal Court.


Reprinted with permission of Harvard Journal of Law and Public Policy.



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