Empirical Desert, Individual Prevention, and Limiting Retributivism: A Reply
Paul H. Robinson
University of Pennsylvania Law School
Joshua Samuel Barton
Sullivan & Cromwell - New York Headquarters
Matthew J. Lister
University of Denver Sturm College of Law
November 23, 2013
New Criminal Law Review, forthcoming Spring 2014.
U of Penn Law School, Public Law Research Paper No. 13-19
A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, 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 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 about empirical desert and moral credibility and instead support their own proposed distributive principle of "individual prevention." As this article shows, however, SBR have it essentially backwards: 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.
We specially thank the editors and anonymous reviewers of the New Criminal Law Review for giving us this opportunity to reply, an opportunity that the Stanford Law Review editors refused us.
Number of Pages in PDF File: 45
Keywords: criminal law, law & society, psychology, views of justice, sentencing and corrections, punishment, blame, lay intuitions of justice, empirical desert, moral credibility, individual prevention, future dangerousness, preventative detention, community involvement in criminal punishmentAccepted Paper Series
Date posted: August 21, 2013 ; Last revised: November 26, 2013
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