
Distributive Principles of Criminal Law
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Content
- Intro
- Contents
- Acknowledgments
- Selected Robinson Bibliography
- 1. Distributing Criminal Liability and Punishment
- 2. The Need for an Articulated Distributive Principle
- A. The Criterion for Each Alternative Distributive Principle
- 1. Deterrence General and Special
- 2. Incapacitation of the Dangerous
- 3. Rehabilitation
- 4. Deontological Desert
- 5. Empirical Desert
- B. Conflicts Among Distributive Principles
- 1. Deterrence General and Special
- 2. Incapacitation and Rehabilitation
- 3. Deontological and Empirical Desert
- C. The Problem of Unarticulated Combinations of Distributive Principles
- 3. Does Criminal Law Deter?
- A. The Prerequisites to Deterrence
- 1. The Legal Knowledge Hurdle
- 2. The Rational Choice Hurdle
- 3. The Perceived Net Cost Hurdle
- 4. Tripping Over Any Hurdle as Fatal to Deterrent Effect
- 5. The Cumulative Dissipation Problem
- B. The Aggregated-Effect Studies
- 1. Studies That Find No Deterrent Effect from Doctrinal Formulation
- 2. Studies That Find Mixed or Conflicting Results
- 3. Studies That Find a Deterrent Effect from Doctrinal Manipulation
- C. The Possibilities and Impossibilities of Improving Deterrent Effect
- 1. Insuring That the Target Audience Knows, Directly or Indirectly, of the Rule Designed to Influence Their Conduct
- 2. Insuring That the Target Audience Perceives a Meaningful Net Cost for a Violation
- 3. Insuring That the Target Audience Is Capable of and Willing to Bring a Perceived Threat of Punishment to Bear on Their Conduct Decisions
- 4. Summary and Conclusion
- 4. Deterrence as a Distributive Principle
- A. The Traditional Assumption That the Formulation of Criminal Law Doctrine Will Influence Conduct
- 1. Doctrinal Formulations Calculated to Deter
- 2. "Deterrence Speak" versus Deviations from Justice
- B. Difficulties of Deterrence as a Distributive Principle
- 1. The Information and Complexity Problems
- 2. The Problem of Comparative Deterrent Effect: The Deterrent Effect Inherent in Other Distributive Principles
- 3. The Problem of Deviating from Desert: Deterrence at Its Worst When Doing Its Best
- 4. The Problem of Offsetting Crimogenic Effect: The Utility of Desert
- 5. Rehabilitation
- A. Does Rehabilitation Work?
- 1. Programs for a General Prison Population
- 2. Programs Targeting Specific Offenders, In and Out of Prison: Drug Users and Sexual Offenders
- B. Rehabilitation as a Distributive Principle
- 6. Incapacitation of the Dangerous
- A. Cloaking Preventive Detention as Criminal Justice
- 1. The Practical Value to Reformers of Creating Desert-Dangerousness Ambiguity
- 2. The Start to Modern Cloaking: The Model Penal Code's Surreptitiously Discounting the Significance of Resulting Harm
- 3. The Inevitable Conflict Between Desert and Dangerousness as Distributive Criteria
- 4. Denying the Conflict
- B. The Justice Problems
- C. The Preventive Detention Problems
- D. Segregating Doing Justice and Preventive Detention
- 7. Competing Conceptions of Desert: Vengeful, Deontological, and Empirical
- A. Competing Conceptions of Desert
- 1. Vengeful Desert
- 2. Deontological Desert
- 3. Empirical Desert
- 4. Vengeful versus Other Conceptions of Desert
- 5. Deontological versus Empirical Desert
- B. Resulting Confusions About the Nature of Deserved Punishment
- 1. Harsh?
- 2. Based on Anger and Hatred?
- 3. A Preference for Prison, or Worse?
- 4. Only Vague Demands?: "Limiting Retributivism" in Setting the Punishment Continuum Endpoint
- 5. Subject to Profound Disagreement?
- 6. Fails to Avoid Avoidable Crime?
- 7. Immoral?
- 8. Impractical to Implement?
- C. Summary: A More Detailed Account of Three Conceptions of Desert
- D. Conclusion
- 8. The Utility of Desert
- A. The Crime-Control Value of Empirical Desert as a Distributive Principle
- 1. Harnessing the Power and Efficiency of Normative Social Influence, Stigmatization
- 2. Avoiding the Resistance and Subversion Produced by a System That Is Seen as Not Doing Justice
- 3. Avoiding Vigilantism
- 4. Having a Role in Shaping Societal Norms: The Persuasive Power of the Law
- 5. Gaining Compliance in Borderline Cases
- 6. Conclusion
- B. The Determinants of Criminal Law's Moral Credibility
- 1. The Detrimental Effect of Blurring the Criminal-Civil Distinction
- 2. The Problem of Moral Divisions within the Community
- 3. The Generalization of Disrespect
- 4. Persuasion versus Contempt
- 5. The Fragility of Reputation: The Costs of Deviations from Desert
- 6. Underestimating the Power of Moral Credibility
- C. Determining Community Perceptions of Desert
- 1. Misconceptions of Empirical Desert as Inevitably Draconian: The Disutility of Injustice
- 2. Do People Intuitively Assess Punishment According to Desert, or Do They Look to Deterrence or Incapacitation?
- 3. Using Community Principles of Justice to Draft Criminal Codes and Sentencing Guidelines
- 4. Community Principles of Justice versus Current Law
- D. Summary and Conclusion
- 9. "Restorative Justice"
- A. The Virtues of Restorative Processes, the Vices of "Restorative Justice"
- B. "Restorative Justice" and Doing Justice
- C. Using Restorative Processes More Widely and in More Serious Cases
- 10. The Strengths and Weaknesses of Alternative Distributive Principles
- A. General Deterrence
- B. Special Deterrence
- C. Rehabilitation
- D. Incapacitation
- E. Empirical Desert
- F. Deontological Desert
- G. Conclusion
- 11. Hybrid Distributive Principles
- A. Alternative Approaches to Constructing an Articulated Hybrid Distributive Principle
- 1. Relying upon the Principle with the Greatest Punishment
- 2. Establishing Priorities
- 3. Distinguishing Determining Principles from Limiting Principles
- 4. Combining Principles: Deferring to the Greatest Utility
- 5. Distinguishing Liability Assignment and Amount of Punishment from the Method of Punishment
- B. The A.L.I.'s Distributive Principle of "Limiting Retributivism"
- 1. The Effectiveness Requirement
- 2. The Problem of Countervailing Criminogenic Effect
- 3. The Nonexistent Range and Desert's Ordinal Ranking Demands
- 12. A Practical Theory of Justice: Proposal for a Hybrid Distributive Principle Centered on Empirical Desert
- A. A Proposed Distributive Principle
- 1. Paragraph 1. Primary Principle of Empirical Desert
- 2. Paragraph 2. Inconspicuous Deviations
- 3. Paragraph 3. Deviations to More Effectively Control Crime
- 4. Paragraph 4. Deviations to Advance Interests Other Than Crime Control
- 5. Paragraph 5. Method of Punishment
- 6. Weakness of the Proposal
- B. Deviations from Empirical Desert
- 1. Promoting Justice in a Complex World
- 2. Sacrificing Justice to Promote Other Interests
- C. Strategies for Avoiding Deviations from Empirical Desert
- 1. Criminal Justice Reforms
- 2. Employing Civil Rather Than Criminal Processes
- D. The Limits of Criminal Law's Distributive Principle
- Index
- A
- B
- C
- D
- E
- F
- G
- H
- I
- J
- K
- L
- M
- N
- O
- P
- Q
- R
- S
- T
- U
- V
- W
- Z
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