Deakin University

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Empirical desert, dangerousness, and limiting retributivism: a reply

journal contribution
posted on 2014-01-01, 00:00 authored by Matthew Lister, P Robinson, J Barton
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.



New Criminal Law Review




312 - 375


University of California Press


United States





Publication classification

C1.1 Refereed article in a scholarly journal; C Journal article

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