Preventive Detention, Character Evidence, and the New Criminal Law

“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.

The shift toward preventive detention has also begun to remake the law of
criminal evidence. As the criminal law increasingly focuses on the characteristics
of the offender rather than the characteristics of the offense, evidence law is
bending to allow juries access to more information about a defendant’s personality
and personal history, especially his or her criminal history. In other words, as the
criminal law focuses increasingly on the incapacitation of dangerous individuals
rather than the deterrence and punishment of dangerous acts, the character
evidence rule is giving way. While evidence scholars have noted the decline in the
character evidence rule for some time, they have typically explained the decline
by reference to competing personality theories in psychology. But the true reason
for the decline has less to do with any shifts in prevailing personality theories than it does with the more fundamental shift in the substantive criminal law—the shift
toward preventive detention.”

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SOURCE: https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1175&context=facsch&httpsredir=1&referer=