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February 19, 2012

"Smooth and Bumpy Laws"

One of many joys of participating in the the terrific conference put on by the folks at the University of Miami was having the chance to talk Professor Adam Kolber about his new paper on smooth and bumpy laws. I love the idea and it seems especially significant for sentencing fans, especially in the context of discussing the dramatic impact that severe mandatory sentencing provisions can have on efforts to reduces unwarranted sentencing disparities.   Though I may say more about the specifics of this paper, which shares the title of this post, in some future posts, for now I will just here reprint the abstract:

Modest differences in conduct can lead to wildly different legal outcomes. A reasonably prudent driver who causes an accident owes nothing, but had the driver been just a bit less cautious, he might have owed millions of dollars.  A man who has sex with a woman reasonably believing she consents likely commits no crime, but if he had just a bit more reason to doubt that she consented, he might have been convicted of rape.  While the law must draw difficult lines, it is puzzling why the lines have such startling effects.  After all, we can fine-tune damage awards and the duration of prison sentences anywhere along a spectrum.

A law is “smooth” when a gradual change in conduct leads to a gradual change in the legal outcome. The prior examples are not smooth but “bumpy”: gradual changes in conduct sometimes have no effect on the legal outcome and sometimes have dramatic effects. The law is full of these bumpy relationships between legal inputs and outputs that create hard-to-justify discontinuities.  While considerations like cost and administrability sometimes justify bumpy laws, I show why there are many opportunities to make the law smoother than it is.

In short form, I think it is fair to look at the entire project of sentencing guidelines as an effort to make criminal laws "smoother," and I hope to say more on this front in some future posts.

February 19, 2012 at 09:53 AM | Permalink

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Comments

There's a good reason for criminal law to be bumpy. You want to be very sure that the behavior you are catching has actually crossed the line between acceptable and unacceptable behavior before you bring the weight of government down on someone. But at the same time because you do wait until the behavior has clearly crossed the line you are also already talking about acts that draw more than minor admonishment as the correct response.

Let's take as an example a hypothetical law that enacted a sort of modern feminist theory of rape (or at least what opponents of such theory imagine it to be), where any amount of coersion turns the encounter into one that lacks consent, but at the same time finely calibrates punishment to the degree of culpability (perhaps even with things like the dinner out case highlighted a few days ago as an example partway along that spectrum). I would argue that any such law is far too vague to yeild any sort of standard of judicial application. Of course, if that were the law I imagine there are plenty of men who could make a devestating case of unequal application of the law, after all there is a term im for women using the withholding of sexual favors to obtain their goals and I'm not aware of any mirror term for men.

I would also argue that any system that determines what sorts of acts are criminal beforehand must be discontinuous by design, that a legislature pretty much by definition is not capable of judging every case individually. And I'm not sure, but I also believe most folks think leaving the days of kings as both lawmaker and judge was for the most part a good move. Perhaps a king can judge each case fairly and impose only that punishment that is actually deserved in any particular instance, but such a king can can also be entirely arbitrary.

Posted by: Soronel Haetir | Feb 19, 2012 5:38:51 PM

Roper v. Simmons is a bumpy law, based not on conduct but on age. Say twins Dan and Dave were born a few minutes apart on either side of midnight. They go on a spree of rape and murder to celebrate Dan's 18th birthday. Dan gets the death penalty, but Dave cannot.

Some people want to make this law even bumpier. They want to exempt Dave from LWOP as well.

Posted by: Kent Scheidegger | Feb 19, 2012 6:32:11 PM

I think that the problem is that things sound good in theory, but don't always work out too well in practice. Yeah, it would be great if judges could be trusted to do justice in sentencing and parole boards could do their jobs well. The blood of too many innocents has shown the folly of this trust. One only needs to look at the recent execution of Robert Waterhouse to figure that out.

Kent, wouldn't you agree, though, that at some point, there have to be bright lines drawn when it comes to the age of death eligibility? I don't agree with 18 at all, but there has to be a line, right?

Posted by: federalist | Feb 20, 2012 9:24:17 AM

I actually did agree with the choice that California and other states made, by statute, to draw the death penalty line at 18. Roper was wrong to impose the same choice by judicial fiat, though.

The point here is to recognize the "bumpy" problem for what it is and not make it worse. California presently draws the LWOP line at 16. I'm okay with that. Yet some people want to move that up to 18 as well. That's not okay, IMHO.

Posted by: Kent Scheidegger | Feb 20, 2012 10:57:26 AM

The problem outlined in the abstract is expressly one about bumpy legal distinctions based on "[m]odest differences in conduct." Legal distinctions drawn on the basis of age are obviously beyond that scope (though that is an interesting and somewhat related topic).

The argument that the law should be bumpy so that it's clear "the line between acceptable and unacceptable behavior" has been crossed simply misunderstands the problem as expressly stated.

The article otherwise is quite cautious in talking about the nature of the variables involved (continuous versus discrete), the advantages and disadvantages of "smoother" law (including the obvious practical, institutional problems), the need for adequate notice, etc. It also acknowledges straight up that "there is no practical way to perfectly smooth the criminal law." In other words, it anticipates and addresses most every relevant objection lodged in the comments above.

Posted by: Michael Drake | Feb 24, 2012 1:58:04 PM

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