Criminal Justice in the Information Age: A Punishment Theory Paradox

Paul Robinson, University of Pennsylvania Law School


This paper suggests how the information age might produce high capture and conviction rates and speculates on the effect of such developments on the criminal justice system's punishment theory. The low rate at which offenders presently are punished makes a deterrent threat of official sanction of limited effect. With a high punishment rate, however, a distribution of liability and punishment based upon a deterrence principle might, for the first time, make sense. On the other hand, the greater deterrent effect might eliminate crime as a serious social concern. And, without the pressure of a serious crime problem, the theory for distributing punishment might revert to distribution based upon community notions of desert, with social science research suggests is the lay person's default distributive principle. (Even a desert distribution of punishment would convey a strong deterrent in a world of high conviction rates.) In other words, the success of deterrence might paradoxically pave the way for its demise and for the domination of desert as the operating theory for the distribution of punishment.