Defendants should not be punished more than they deserve. Sentencing scholars describe this precept against undeserved punishment as a consensus norm in American law and culture. Yet America faces a plague of mass incarceration, and many sanctions seem clearly undeserved, often far exceeding an offender’s culpability or the seriousness of an offense. How can a society committed to desert as a limitation on legitimate sanctions allow such undeserved punishments?

Critics argue increasingly that our focus on what offenders deserve is itself part of the problem. They claim that the notion of desert is too amorphous, malleable, and arbitrary to limit sentences, and instead operates as a moral license for excess. To avoid overpunishment, they urge us to pay less attention to desert.

The problem, however, is not too much attention to desert. The real problem is too little attention to desert as a constraint. Sentencing statutes do not require an explicit determination of the limits of desert. Most regimes instruct judges to select sentences based on both desert and utility as if they were commensurate concerns. This tempts judges to exaggerate or ignore the limits of desert when greater severity would advance utilitarian ends, such as incapacitating the defendant or deterring others. A sentencer’s perceptions of what is good for society as a whole can lead to sentences of virtually unchecked brutality. Remarkably, the rich existing literature on desert in sentencing has overlooked how our sentencing procedures thus invite sentencing excess.

To prevent undeserved punishment, we must reform the sentencing process. Sentencing should begin with a cap, a specification of the maximum set by desert, prior to any inquiry into possible future benefits that a penalty might achieve. No final sentence should exceed that preset upper limit. Although existing statutory minimum penalties might still require undeservedly severe punishments, this proposed reform would expose their injustice and bolster the case for their repeal.

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