47:5 Proximate Retribution

Article

Abstract

An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender’s conduct should be considered in determining that offender’s desert. The more remote harms caused by an offender’s conduct, such as the effects of his offenses on the families and friends of their victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article takes a first look at this overlooked issue of the role that more remote harms should play in sentencing and asserts that accounting for these more remote harms under certain conditions would better reflect the basic tenets of harm-based retributivism—the theory at the heart of many sentencing schemes. The Article acknowledges some of the concerns that considering these harms raises and argues that a proximate causation analysis is essential to limit the harms considered in sentencing while acknowledging the full array of harms caused by criminal conduct. This notion of “proximate retribution” is necessary to rein in criminal liability under the theory.