Citation

von Hirsch A. Crime Delinq. 1984; 30(2): 175-194.

Copyright

(Copyright © 1984, SAGE Publishing)

DOI

10.1177/0011128784030002002

PMID

unavailable

Abstract

With growing attention to "selective incapacitation" strategies, the issue of the fairness of prediction-based sentencing has revived. Some recent advocates of such strategies have argued that predictive sentencing is just, because the criteria for prediction (particularly, the offender's prior criminal history) coincide or overlap with the criteria for deserved punishment. This article contends that such claims are mistaken: that, in fact, the criteria for prediction and for desert differ significantly in the degree of emphasis that may be placed on the prior criminal history, and in the type of information about that history which may appropriately be used. The article also criticizes recent arguments that desert furnishes only broad outer limits on punishments, within which predictive determinations may fairly be used. It is concluded that the tension between selective incapacitation and desert cannot be ignored; and that the use of selective-incapacitation strategies in sentencing entails sacrifices of equity for offenders.