Actuarial Justice: The Emerging New Criminal Law

Abstract

This chapter argues that there is a paradigm shift taking place in the criminal process. It explores the intellectual, political, and social contexts of actuarial justice. This falls far short of a causal explanation, but by linking actuarial justice to emerging practices elsewhere we can identify some of the forces that are facilitating the growth of actuarial justice. Possibly the clearest indication of actuarial justice is found in the new theory of incapacitation, which has perhaps become the predominant model of punishment. An important movement in contemporary jurisprudence with possible links to actuarial justice is law and economics. Economic thinking has a powerful influence on contemporary scholarship in a variety of substantive law fields, especially torts, contracts, environmental law and anti-trust, and in turn this has influenced the courts. But if the emergence of the term underclass reinforces the salience of actuarial justice, the links to practice are even more significant.