Limiting Retributivism and Individual Prevention

The Routledge Handbook on the Philosophy and Science of Punishment (Farah Focquaert, ed., Forthcoming)

Vanderbilt Law Review, No. 19-03

16 Pages Posted: 20 Jul 2019 Last revised: 4 Oct 2019

Date Written: January 18, 2019

Abstract

Limiting retributivism, also known as modified desert theory, is a “mixed theory” of punishment that posits that retributive principles should set the outer bounds of a sentence, while the precise nature and duration of disposition should be designed to implement one or more independent criminal justice system goals. This chapter focuses on a particular version of limiting retributivism, which it calls “preventive justice.” Similar in concept to traditional indeterminate sentencing, a preventive justice regime adopts sentence ranges consistent with the offender’s desert and then relies on expert parole boards to determine the nature and duration of sentence within this range based on consideration of individual prevention goals (i.e., incapacitation, specific deterrence and rehabilitation). The analysis of this chapter suggests that a system of relatively wide sentence ranges derived from retributive principles, in combination with short minimum sentences that are enhanced under limited circumstances by statistically-driven risk assessment and management, can alleviate many of the inherent tensions between desert and prevention, between deontology and political reality, and between the desire for community input and the allure of expertise. If done properly, it should also significantly reduce prison populations.

Suggested Citation

Slobogin, Christopher, Limiting Retributivism and Individual Prevention (January 18, 2019). The Routledge Handbook on the Philosophy and Science of Punishment (Farah Focquaert, ed., Forthcoming); Vanderbilt Law Review, No. 19-03. Available at SSRN: https://ssrn.com/abstract=3318321

Christopher Slobogin (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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