New Criminal Law Review 17 (2):312-375 (2014)
Authors |
|
Abstract |
A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and punishment rules 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 they argue undermine these claims of empirical desert and moral credibility and instead support SBR's proposed distributive principle of "individual prevention," a view that focuses on an offender's future dangerousness rather than on his perceived desert.
The idea that there is a relationship between the criminal law's reputation for justness and its crime-control effectiveness did not originate with Robinson and his co-authors. Rather, it has been a common theme among a wide range of punishment theory scholars for many decades. A particularly important conclusion of recent Robinson studies, however, is their confirmation that this relationship is a continuous one: even small nudges in moral credibility can produce corresponding changes in the community's deference to the criminal law. This is important because it shows that even piecemeal changes or changes at the margin – as in reforming even one unjust doctrine or procedure – can have real implications for crime-control. SBR's studies, rather than contradicting the crime-control power of empirical desert, in fact confirm it. Further, SBR's studies do not provide support for their proposed "individual prevention" distributive principle, contrary to what they claim.
While SBR try to associate their principle with the popular "limiting retributivism" adopted by the American Law Institute in its 2007 amendment of the Model Penal Code, in fact it is, in many respects, just the reverse of that principle. With limiting retributivism, the Model Code's new provision sets desert as dominant, never allowing punishment to conflict with it. SBR would have "punishment" essentially always set according to future dangerousness; it is to be constrained by desert only when the extent of the resulting injustices or failures of justice is so egregious as to significantly delegitimize the government and its law. This ignores the fact that even minor departures from justice may have an important cumulative effect on the system as a whole. What SBR propose – essentially substituting preventive detention for criminal justice – promotes the worst of the failed policies of the 1960s, where detention decisions were made at the back-end by "experts," and conflicts with the trend of the past several decades of encouraging more community involvement in criminal punishment, not less.
|
Keywords | criminal law punishment desert retributivism moral norms legal philosophy preventive detention blame intuitions of justice moral psychology |
Categories | (categorize this paper) |
Options |
![]() ![]() ![]() ![]() |
Download options
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
The Role of Moral Philosophers in the Competition Between Deontological and Empirical Desert.Paul H. Robinson - unknown
Retributivism and Fallible Systems of Punishment.George Schedler - 2011 - Criminal Justice Ethics 30 (3):240-266.
Criminal Law Conversations: "Desert: Empirical, Not Metaphysical" and "Contractualism and the Sharing of Wrongs".Matthew Lister - 2009 - In Paul Robinson, Kimberly Ferzan & Stephen Garvey (eds.), Criminal Law Conversations.
Making More Sense of Retributivism: Desert as Responsibility and Proportionality.J. Angelo Corlett - 2003 - Philosophy 78 (2):279-287.
The Fitting, the Deserving, and the Beautiful.Leo Zaibert - 2006 - Journal of Moral Philosophy 3 (3):331-350.
Persons, Punishment, and Free Will Skepticism.Benjamin Vilhauer - 2013 - Philosophical Studies 162 (2):143-163.
Annulment Retributivism: A Hegelian Theory of Punishment.Jami L. Anderson - 1999 - Cambridge University Press 5 (4):363-388.
Moore’s Moral Facts and the Gap in the Retributive Theory.Brian Rosebury - 2011 - Criminal Law and Philosophy 5 (3):361-376.
Analytics
Added to PP index
2013-08-22
Total views
68 ( #167,223 of 2,499,765 )
Recent downloads (6 months)
1 ( #418,066 of 2,499,765 )
2013-08-22
Total views
68 ( #167,223 of 2,499,765 )
Recent downloads (6 months)
1 ( #418,066 of 2,499,765 )
How can I increase my downloads?
Downloads