Empirical Desert, Individual Prevention, and Limiting Retributivism

Abstract

A number of articles and empirical studies over the past decade suggest a relationship between the criminal law’s reputation for being just—its “moral credibility”—and its 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.