Half a century ago, prevention was the primary goal of the criminal justice system. Often taking the form of rehabilitation, preventive justice took a forward-looking, indeterminate approach to sentencing, with a focus on risk assessment and risk management. This approach is commonly referred to as “punishing the criminal, not the crime.”
By the 1970s, however, this model was under significant attack, challenged by claims of ineffective rehabilitation, inaccurate predictions of recidivism, and incompetent parole boards, among other objections. The model that rose in its wake – a retributive, “desert”-based system – revolves around the offender’s conviction and, in some cases, previous crimes. “Punishing the crime, not the criminal” has been a common practice since the 1970s.
In his book Rehabilitating Criminal Justice, Vanderbilt criminal law expert Christopher Slobogin argues in Chapter 9 that the time may have come to reconsider preventive justice, for two primary reasons:
Science has improved our ability to assess and manage risk.
Slobogin notes advancements in the areas of behavior, brain science, genetics, and environment that afford us greater knowledge of what causes crime and how to predict and prevent it. “We still have much to learn, (but) today we know considerably more about how to implement preventive justice than we did when the reign of indeterminate sentencing came to an end,” he writes.
Desert-based sentencing is partially responsible for the U.S. high incarceration rate.
Despite ongoing efforts in some states to reduce prison populations, the U.S. remains in what Slobogin terms “the throes of hyperincarceration,” imprisoning (by some estimates) somewhere between 600-700 people per 100,000.
“There are dozens of reasons for this increase in punitiveness,” Slobogin explains, “but a key one is the move toward desert-based sentencing.”
He points out that the rise of the desert-based system in the 1970s coincides with a dramatic uptick in the incarceration rate, fueled by mandatory minimum sentences, the truth-in-sentencing movement, three-strikes laws, and the abolition or curtailing invalidation of parole boards. “In theory, a preventive justice regime should curb every one of these instruments of hyperincarceration,” he writes.
Slobogin proposes a revised model of preventive justice that incorporates retributive aspects. It comes with three principal features:
- Convictions for crimes would remain based on desert. Labeling someone a criminal would still only occur when a person has engaged in a blameworthy act with a culpable mental state.
- Desert would be used to determine (broad) sentence ranges, but not the sentence itself. Slobogin points to the Modal Penal Code (MPC), a regime from the 1950s with ranges broader than those used today, as a potential model. The MPC includes ranges for felonies of 1-20 years for first-degree, 1-10 for second-degree, and 1-5 for third-degree, with courts permitted to go below the minimum and consider alternatives to prison.
- Sentences would depend on a risk-needs assessment. An assessment team would use actuarial and professional judgement tools (which Slobogin describes in Chapter 5) that would weigh factors such as criminal history, psychological characteristics, age, and diagnosis. Sentences could not exceed the maximum of the range, and offenders that are not considered high risk would be released once they have served the minimum. Sentences may also be served, fully or partially, in community-based programs, depending on the risk level of the convict.
While this proposal contains many elements of the old preventive system – one that Slobogin writes “was founded on weak underpinnings and was poorly implemented” – it also contains “significant differences,” including the use of validated tools and sentence ranges based on desert.
“Done properly, a preventive justice system should significantly reduce prison populations,” he concludes.
Rehabilitating Criminal Justice, published by Cambridge University Press, is available to order. Christopher Slobogin is the Milton R. Underwood Chair in Law and Director of the Criminal Justice Program at Vanderbilt Law.
