Empirical desert, individual prevention, and limiting retributivism: A reply.

Source: (2014) New Criminal Law Review. 17(2):312-375.

A number of articles and empirical studies over the past decade suggest a relationship
between the criminal law ‘ reputation for being just-its “moral
credibility” -andit s ability to gain society’s deference and compliance through
a variety of mechanisms that enhance the system ‘s crime-control effectiveness.
This has led to proposals for criminal liability and punishment rules to reflect
lay intuitions of justice- “empirical desert”-as a means of enhancing the
system’s moral credibility. In a recent article, Christopher Slobogin and Lauren
Brinkley-Rubinstein (SBR) report seven sets of studies that, in their view,
undermine these claims about empirical desert and moral credibility. Instead,
say SBR, the studies support their own proposed distributive principle of “individual
prevention. “As this article shows, however, SBR have it wrong on both
counts: not only do their studies actually confirm the crime-control power of
empirical desert, but they provide no support for their own principle of individual
prevention. Moreover, that principle, which focuses on an offender’s
dangerousness rather than his perceived desert, is erroneously described by SBR
as “a sort of limiting retributivism.” In reality, what SBR propose is a system
based on dangerousness, where detention decisions are made at the back end by
experts. Such an approach promotes the worst of the failed policies of the 1960s,
and conflicts with the modern trend of encouraging more community involvement
in criminal punishment, not less. (author’s abstract)