Preventive Detention, Character Evidence, and the New Criminal

The criminal law is changing in a profound way. Anglo-American criminal law has traditionally focused on deterring and punishing discrete acts of misconduct. In the last few decades, however, American criminal law has shifted its focus from deviant acts to dangerous individuals. Incapacitation, which once played only a peripheral role in the criminal law, has moved to center stage.

To a substantial extent, it has supplanted the two formerly dominant theories of punishment—deterrence and retribution. This dramatic change has been noted, often with some dread, by both legal scholars and sociologists.