Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals

By Andrew Von Hirsch

In examining the conflict between the just desserts and selective incapacitation theories of sentencing, this book argues that an ethical sentence must be proportional and just, requiring that any incapacitation strategy in sentencing should focus on crime categories rather than particular offenders.

After reviewing the evolution of the debate surrounding the two sentencing strategies -- one which focuses on past crimes and the other which addresses the risk of future crimes -- the discussion turns to the use of sentencing guidelines, which are favored by both dessert and incapacitation proponents, but for different purposes. An analysis of the just desserts theory then explains why and how punishments should be proportionate to the severity of crimes already committed. Also considered are the gauging of crime seriousness, the weighting of current and previous convictions, and the fixing of starting points when constructing a penalty scale. The critique of selective incapacitation sentencing reviews recent research on career criminals and demonstrates limitations in predicting serious criminality. Moral objections to sentencing offenders primarily for their expected future crimes are noted. The book concludes that the only way to meet the standard of proportionality and justice is to sentence offenders by crime categories rather than by predictions of future criminality for particular offenders. The appendixes discuss false positives in predicting criminality and Minnesota's sentencing guidelines. A subject index and a 200-item bibliography are provided.

Piscataway, NJ; Rutgers University Press, 230. 1985