UVA legal philosopher Kimberly Kessler Ferzan, above, and her co-author, Larry Alexander of the University of San Diego School of Law, explore the philosophical underpinnings of retributive justice in their second book together. (Photo by Tom Cogill) ne of the central ideas in criminal law is that people should be punished because they deserve it, and only as much as they deserve. This view – retributivism – contends that it is wrong to punish people who are innocent and to inflict greater punishment than is proportionate to the offense.
Courts and commentators must then still determine what a “just” punishment may be.
Professor Kimberly Kessler Ferzan, a legal philosopher at the University of Virginia School of Law, has co-written a new book that explores a series of quandaries that have arisen from her scholarship concerning retribution in criminal law.
“Reflections on Crime and Culpability: Problems and Puzzles,” which Ferzan co-wrote with professor Larry Alexander of the University of San Diego School of Law, was released last week from Cambridge University Press.
The book builds on the pair’s 2009 book, “Crime and Culpability: A Theory of Criminal Law,” which asked what a retributivist criminal law should look like. They argued, among other things, that attempted crimes are as culpable as completed crimes and that negligence is not culpable and should not be within the sphere of criminal law.
“Attempts should be punished the same as completed crimes,” Ferzan said. “So it doesn’t matter if I shoot at you and hit you. It doesn’t matter if I shoot at you and miss. I should be punished the same amount. Why would you let luck determine what someone’s punishment is?
“And we also argue, though, that attempts shouldn’t be punished until you are actually committing an act that is sort of a ‘last act.’ That is, when you’ve unleashed the risk of a harm that you can no longer completely control. So if I’m coming at you with a knife, but I can change my mind, then that shouldn’t count as having attempted to kill you yet, though I may be guilty of other offenses, such as threatening […]