Preventing future crime has become an increasingly dominant function of the criminal law of many liberal democracies. This “preventive turn” has led to a profound debate on the legal and ethical boundaries of the “preventive state.” However, the concept at the core of preventive justice—the dangerousness of the offender—has attracted relatively little attention in the current debate. This is remarkable, as the legal establishment of dangerousness permits intrusive preventive measures, such as preventive detention for an indeterminate period of time. In (...) the past, various concepts of dangerousness have been developed by criminal law scholars. We discuss these concepts in a chronological order to demonstrate how the meaning of dangerousness has evolved over time, and how it has been shaped by concurrent developments in forensic psychiatry and penology. Our description of the state of the art of legal scholarship on the concept of dangerousness also shows the lack of a fully developed theory of dangerousness, and therefore the necessity of further research. We identify five “aspects” of the concept of dangerousness on which scholars have widely diverging views. These five aspects are intended to guide further research on the concept of dangerousness in preventive criminal law. (shrink)

With a focus on the Common Law jurisdiction of England and Wales and the Civil Law jurisdiction of Vietnam, this article provides an analytical framework to address the uncertain jurisprudence of minor offence processes. The article’s approach is to seek an account of crime and criminal process that is most suitable for practice and most compatible with the broad notion of ‘criminal charge’ under international human rights instruments. It is argued that minor offences should be considered forms of less serious (...) crimes that are subject to short periods of imprisonment or non-custodial punishments and dealt with by summary procedures. The fragmentation of minor offences demands an approach to procedural pragmatism and procedural proportionality; that is, the procedure for each type of offence should be proportionate to the severity of punishment and fair as a whole. (shrink)

Indeterminate sentencing is a sentencing practice where offenders are sentenced to a range of potential imprisonment terms and where the actual release date is determined later, typically by a parole board. Although indeterminate sentencing is often considered morally problematic from a retributivist perspective, Michael O’Hear has provided an interesting attempt to reconcile indeterminate sentencing with the communicative version of retributivism developed by Antony Duff. O’Hear’s core argument is that delayed release, within the parameters of the indeterminate sentence, can be seen (...) as an appropriate retributivist response to the violations of prison rules. This article highlights several problems in O’Hear’s proposal and argues that the communicative theory is not easily reconciled with his proposed model for indeterminate sentencing. In conclusion, it is argued that proponents of the communicative version of retributivism should resist indeterminate prison sentences. (shrink)