The Civilization of the Criminal Law
Slobogin, Christopher, 1951-
This article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice. More specifically, it examines an updated version of the type of government intervention espoused four decades ago by thinkers such as Barbara Wooton, Sheldon Glueck, and Karl Menninger. These individuals, the first a criminologist, the latter two mental health professionals, envisioned a system that is triggered by an antisocial act but that pays no attention to desert or even to general deterrence. Rather, the sole goal of the system they proposed is individual prevention through assessments of dangerousness and the provision of treatment designed to reduce it. The ultimate objective of this article is to present a defense of a prevention system as a replacement for - rather than (as with sexual predator statutes)an addition to - our current criminal justice system. Such a defense of a purely preventive regime has been rare in the legal literature since the 1960s, when just deserts philosophy became popular and preventive approaches fell into disrepute. Since then, a number of conceptual and empirical advances have made the issue even more complex. The case for a preventive regime nonetheless deserves serious consideration in the twenty-first century, as an increasing number of jurisdictions adopt harsh determinate sentencing based on desert principles, and in the wake of the American Law Institute's recent announcement that its planned revision of the Model Penal Code will forsake the original Code's focus on reform of prisoners and instead endorse a just deserts approach to sentencing. The first part of the article looks at jurisprudential objections to a prevention regime, which all center on its perceived failure to do "justice." It contends that such a regime would neither slight human dignity nor undermine the general deterrence and character-shaping goals of the criminal law. The second part examines concerns about the feasibility of a preventive system, including questions about the accuracy of predictions, the efficacy of treatment, and the costs of a reform-oriented justice system. It concludes that these concerns are overstated, and in any event are less serious than the practical problems that afflict the punishment model. The third part describes one further reason for favoring prevention over traditional punishment: a preventive regime is much better at assimilating the proliferation of scientific findings that call into question humans' ability to control their actions, which is the central premise of a punishment system based on desert. The view taken in this article is exploratory, however. For a number of reasons, legal and sociological, one might be ambivalent about instituting a full-blown preventive regime, at least in the immediate future. Accordingly, the conclusion to the article suggests a transitional compromise, which maintains culpability as the threshold for government intervention, and reserves application of the preventive model for disposition, in what amounts to a modern version of indeterminate sentencing.