Wednesday, April 9, 2014
Christopher Slobogin (Vanderbilt University - Law School) has posted Empirical Desert and Preventive Justice: A Comment (New Criminal Law Review, Vol. 17, Number 2, pps 376–403, 2014) on SSRN. Here is the abstract:
This essay is a response to an article by Paul Robinson, Joshua Barton and Matthew Lister in this issue of New Criminal Law Review that criticizes an article I authored with Lauren Brinkley-Rubinstein entitled Putting Desert in its Place, which was itself an analysis of several works published by Robinson and various co-authors making the case for “empirical desert.” Robinson’s suggestion that utility can be optimized by a focus on desert as it is viewed by the average citizen opens up a new line of inquiry that could lead to a better appreciation of the influence desert should have on the criminal law. Where we disagree is how much utility a system founded on empirical desert is likely to have. Robinson appears to hold that failing to subscribe to empirical desert in most cases will result in noticeable disutility, whereas I am inclined to believe, consistent with the studies in Putting Desert in Its Place, that only significant, continuous and highly-publicized departures from lay views will occasion the loss of compliance and cooperation that Robinson describes. This article also defends the punishment scheme that I have called “preventive justice” against some of the claims made by Robinson, Barton and Lister.