This Article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice, based on assessments of dangerousness and the provision of treatment designed to reduce it .Defense of a purely preventive regime has been rare in the legal literature since the 1960s, when just deserts philosophy became popular and preventive approaches fell into disrepute. The case for a preventive regime nonetheless deserves serious consideration in the twenty-first century, as an increasing number of jurisdictions adopt harsh determinate sentencing based on desert principles, and in the wake of the American Law Institute's recent announcement that its planned revision of the Model Penal Code will forsake the original Code's focus on reform of prisoners and instead endorse a just deserts approach to sentencing.
The Article first looks at jurisprudential objections to a prevention regime, which all center on its perceived failure to do "justice." It contends that such a regime would neither slight human dignity nor undermine the general deterrence and character-shaping goals of the criminal law. The second part examines concerns about the feasibility of a preventive system, including questions about the accuracy of predictions, the efficacy of treatment, and the costs of a reform-oriented justice system. It concludes that these concerns are overstated, and in any event are less serious than the practical problems that afflict the punishment model. The third part describes one further reason for favoring prevention over traditional punishment: a preventive regime is much better at assimilating the proliferation of scientific findings that call into question humans' ability to control their actions, which is the central premise of a punishment system based on desert.
The view taken in this Article is exploratory, however. For a number of reasons, legal and sociological, one might be ambivalent about instituting a full-blown preventive regime, at least in the immediate future. Accordingly, the conclusion to the Article suggests a transitional compromise, which maintains culpability as the threshold for government intervention, and reserves application of the preventive model for disposition, in what amounts to a modern version of indeterminate sentencing.
I. INTRODUCTION: PUNISHMENT V. PREVENTION
The boundaries of the criminal justice system are eroding. A vast amount of relatively innocuous behavior is now criminalized.1 The line between criminal penalties and administrative sanctions is dissolving, as criminal law relaxes its mens rea requirements and government bureaucracies aggressively pursue regulatory violations.2 Distinctions between criminal and civil forfeiture, contempt, and deportation proceedings have been vanishingly subtle for some time.3
Perhaps the most serious assault on the integrity of today's criminal justice system, however, is the increasing prominence of the "dangerousness criterion" as justification for confinement by the government. Governmental deprivations of liberty have usually been the province of the criminal law, which is generally defined by a commitment to punishing individuals for their past acts based on the principle of just deserts.4 Constraints on liberty based upon dangerousness, in contrast, focus on the individual's future actions.5 These latter types of interventions contemplate neither punishment nor an assessment of blameworthiness for previous conduct, and thus directly flout the traditional premises of criminal justice.
This Article contends, contrary to the views of most legal commentators, that this development ought to be encouraged. The criminal law ought to embrace the dangerousness criterion, with the significant caveat that it do so wholeheartedly rather than in the halting manner it has exhibited to date. The punishment model of criminal justice that views desert, general deterrence, or inculcation of good character (or some combination of these three) as the primary objective of criminal justice should be discarded, and individual prevention should become the predominant goal of the criminal justice system. …