« Sign of the sentencing reform times: Louisiana Gov candidates spar over prison reform plans | Main | American Pot: will Ohioans make this the day marijuana prohibition died? UPDATE: NO, Issue 3 loses big »

November 3, 2015

"The Bumpiness of Criminal Law"

The title of this post is the title of this notable paper by Adam Kolber now available via SSRN. Here is the abstract:

Criminal law frequently requires all-or-nothing determinations.  A defendant who reasonably believed his companion consented to sex may have no criminal liability, while one who fell just short of being reasonable may spend several years in prison for rape. Though their levels of culpability vary slightly, their legal treatment differs dramatically. True, the law must draw difficult lines, but the lines need not have such dramatic effects. We can precisely adjust fines and prison sentences along a spectrum.

Leading theories of punishment generally demand smooth relationships between their most important inputs and outputs.  An input and output have a smooth relationship when a gradual change to the input causes a gradual change to the output.  By contrast, actual criminal laws are often quite bumpy: a gradual change to the input sometimes has no effect on the output and sometimes has dramatic effects.  Such bumpiness pervades much of the criminal law, going well beyond familiar complaints about statutory minima and mandatory enhancements.  While some of the bumpiness of the criminal law may be justified by interests in reducing adjudication costs, limiting allocations of discretion, and providing adequate notice, I will argue that the criminal law is likely bumpier than necessary and suggest ways to make it smoother.

November 3, 2015 at 08:34 AM | Permalink


Several points.

First, all law (not just criminal) have points when it gets bumpy. In your typical tort situation, a party is either negligent or it isn't. It is only when there are multiple negligent parties that you have the ability to smooth things out by allocating fault to address how bad each party was.

Second, there are ways to smooth out the criminal justice system. The two primary ways are by the use of degrees of offenses -- some based on minor changes in the mental state (purposeful vs. knowing vs. reckless) and some based on minor changes in the act (age of victim, amount of drugs, level of injury) -- and by significant ranges of punishment (allowing the court to smooth things out based on its assessment of culpability). There is, as have been discussed in other posts, some conflict between these two methods. The reason to have degrees is to make sure that the worst offenders get the most serious punishment while the marginal offenders get a lesser punishment and that purpose is undermined if there is no significant difference in the ranges of punishment. On the other hand, significant differences in the ranges of punishment create the potential for plea negotiations to be influenced by those differences. While ultimately, there is that yes-no decision as to whether there is any criminal liability, both options do create the potential for gradual changes in punishment based on gradual changes in the offender's conduct.

Posted by: tmm | Nov 3, 2015 10:54:27 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB