Abstract
Time is missing from discussions on the theory of retribution. A colossal body of scholarship has been devoted to exploring the theory of retribution, or “just deserts,” but much less has attempted to translate this theory into practice, explaining how to determine an actual offender’s desert in real life. The limited scholarship on this topic touches on who might best assess an offender’s desert. For example, should a judge, a juror, or the public itself be making these desert decisions? But there is also a temporal aspect to this decision-making that has thus far largely eluded exploration: When should the desert decision be made? The recently finalized Model Penal Code: Sentencing brings this question into relief by calling on legislatures to allow judges to reassess certain sentencing decisions made decades earlier. But do later sentencers really have a better sense of desert than the original sentencers in a case? This Article argues that the original sentencers, and in particular the original public and its representatives, are actually best positioned to decide an offender’s desert. They represent the original victims in the case; they are closer to the facts; they comprise the society that shaped the offender and the circumstances leading to the offense; and recognizing these original sentencers’ desert-deciding advantage furthers finality goals. Now, there may certainly be reasons to modify sentences after they have been imposed—primarily when new information justifies new sentences. But, in most cases, new sentencers are generally not more enlightened about what an offender actually deserves. Instead, when new sentencers have an edge over original sentencers, it often stems from consequentialist, rather than retributivist, principles. Under the theory of retribution, original sentencers are ordinarily best equipped to assess an offender’s desert.
Recommended Citation
Meghan J. Ryan,
Time and Retribution,
89 Mo. L. Rev.
(2025)
Available at: https://scholarship.law.missouri.edu/mlr/vol89/iss4/8
