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February 11, 2011

"Longitudinal Guilt: Repeat Offenders, Plea Bargaining, and the Variable Standard of Proof"

The title of this post is the title of this very interesting-looking new paper by Professor Russell Covey now available via SSRN.  Here is the abstract:

The Article introduces a new concept — “longitudinal guilt” — which invites readers to reconsider basic presuppositions about the way our criminal justice system determines guilt in criminal cases.  In short, the idea is that a variety of features of criminal procedure, most importantly, plea bargaining, conspire to change the primary “truthfinding mission” of criminal law from one of adjudicating individual historical cases to one of identifying dangerous “offenders.”  This change of mission is visible in the lower proof standards we apply to repeat criminal offenders.

The first section of this Article explains how plea-bargaining and graduated sentencing systems based on criminal history effectively combine together to lower the standard of proof for repeat criminals.  The second section describes several additional procedural and evidentiary rules that further effectively reduce the standard of proof for recidivists.  The third section argues that the net effect is a criminal justice system that is primarily focused on the identification of a class of “dangerous offenders” based upon their repeated interactions with the system over time rather than the accurate resolution of specific allegations of wrongdoing in individual cases, as is conventionally supposed. In a phrase, we have moved toward a system that constructs guilt “longitudinally.”  The Article concludes with a few brief thoughts on the merits and demerits of longitudinal guilt.

February 11, 2011 at 12:24 PM | Permalink


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Frankly this paper strikes me as being rather stilted and silly. From a cognitive viewpoint, the question is, how does the state access the problem, which are instances of social disorder. The sensible way to do this is by means of an argument that puts the offender in jeopardy.

The priming premise of that argument is that the offender committed a crime, which is composed of elements. Penalties for crimes are fixed before the fact, at a time when the problem is not fully knowable, and imposed after the fact. If we think of robbery as a crime, all robberies are the same because they have the same elements.

The base premise of that argument is that the offender’s crime is the core part of a criminal offense. Offenses have bad attributes that are not knowable until after the fact. If we think of robbery as an offense, each robbery is different from all other robberies because each has different bad attributes. Offenders are punished for committing offenses. Accordingly, the law establishes a punishment range for offenses before the fact because their precise bad attributes are not knowable until later.

Finally the argument concludes with the proposition that the offender is a criminal offender who has a substantial risk of committing another crime.

Penalties and punishments are fixed; risk is changeable.

The state should differentiate between each of these premises and their conclusion, and respond accordingly. This means that the system must be fine-grained. Coarse-grain sentences, such as a simple sentence to prison will not suffice. There should be a fine-grain, modular plan for each offender; e.g., deprivation module, domicile module and so on.

Posted by: Tom McGee | Feb 11, 2011 2:41:57 PM

By the repetition of crime, a lower standard of proof is adequate in that there is a greater likelihood of guilt by the character of the defendant. Furthermore, the defendant has not been able to learn from prior punishment, and is more dangerous to others. Even if the 3 in 123D is a false conviction, he still needs to go. Given the 1 in 100 chance of substantive punishment for a major crime under the protection of the lawyer, each conviction is a stand in for 100 crimes.

Posted by: Supremacy Claus | Feb 13, 2011 6:12:07 PM

The professor offers nothing to validate or even quantify the Medieval lawyer anti-scientific garbage still being used in our courts. There is no validity to the trial itself, let alone to any of its standards of proof. Because most of this evidence stuff is plagiarized word for word from the Catechism analysis of Mortal Sin, the entire scheme is unlawful in our secular nation. None of these Medieval garbage ideas exist in nature. Even the Church says that, and admits, one must believe only by faith. The words, element, intent, standard of proof, certainty, reasonable, in this context, represent insurrection against our constitution, and merit the death penalty for internal treason. I would like to see the lawyer hierarchy arrested, given a brief fair trial, and summarily executed in the court basement right afterward. To save our nation. To deter.

Posted by: Supremacy Claus | Feb 13, 2011 6:18:15 PM

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