Document Type

Article

Publication Date

9-7-2000

Abstract

The criminal justice system has traditionally been seen as in the business of doing justice: punishing offenders for crimes committed. Yet, the past decade has brought a shift from punishing past crimes to preventing future crimes through the incarceration and control of dangerous offenders. Habitual offender statutes, like "three strikes" laws, sentence repeat offenders to life imprisonment. Jurisdictional reforms lower the age at which juveniles may be tried as adults, inc reasing th e available terms of imprisonment beyond those of juvenile court. Gang membership and recruitment are criminalized. "Megan's Law" statutes require community notification of a convicted sex offender. "Sexual predator" statutes provide for civil detention of offenders who remain dangerous at the conclusion of their criminal term. Sentencing guidelines increase the sentence of offenders who have a prior criminal history, for these offenders are seen as the most likely to comm it future crimes. The shift from punishment toward prevention has not been accompanied by a corresponding change in how the system advertises itself. It still presents itself as a system of crimin al "justice" that imposes "punishment." It is imp ossible, of course, to punish dangerousness, within the meaning of those terms. To "punish" is "to cause a person to undergo pain, loss, or suffering for a crime or wrongdoing." Punishment can only exist in relation to a past harm or evil. "Dangerous" means "likely to cause injury, pain, etc.," that is, a threat of future harm. One can "restrain" or "detain" or "incapacitate" a dangerous person, but one cannot logically "punish" dangerousness. Yet our current criminal justice system increasingly fosters ambiguity between punishment and prevention , as if one could punish dangerousness. Why the shift to preventive detention? Why the wish to keep the old "criminal justice" window dressing? Available for download at http://ssrn.com/abstract=661243

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