9 - Preventive Justice

Summary

Because plea bargaining is usually about disposition rather than guilt or innocence, the discussion in Chapter 8 transitions nicely into Part III, which is mostly about sentencing. People on both the left and the right acknowledge that our current punishment system is overly dependent on prolonged incarceration and that our astounding imprisonment rates need to be reduced. Chapter 9 argues that the antidote to our hyper-punitiveness is preventive justice, which relies heavily on empirical assessments of recidivism risk and intervention needs. While this type of regime would still depend on retributive criteria to set (broad) sentencing ranges, it replaces the current emphasis on calibrating sanctions according to the culpability of offenders with a focus on whether imprisonment is needed to protect the public. After describing preventive justice in skeletal form, the chapter explains why this approach to sentencing could become a critical tool for reducing incarceration and the harms it causes, without increasing the threat to public safety. The chapter also addresses constitutional and philosophical concerns about a regime focused on prevention. Most importantly, it explains why preventive justice is not Minority Report in disguise.