Skip to main content
Article
Scaled Punishments
New Criminal Law Review (2013)
  • Matthew Wansley, Benjamin N. Cardozo School of Law
Abstract
This article challenges the principle that punishment is only justified after a defendant has been found guilty beyond a reasonable doubt. It proposes instead a system of scaled punishments in which a defendant’s sentence would be proportioned to the jury’s reported confidence level in the defendant’s guilt. The criminal justice system already implements a series of implicit scaled punishments in the form of plea bargains. This article defends the counterintuitive conclusion that a system of explicit scaled punishments would better satisfy the aims of retribution, incapacitation, and deterrence that we take to legitimate punishment. A system of scaled punishments would smooth out the moral discontinuity that our binary verdict structure creates. It would more precisely align the collateral consequences of criminal adjudications with the risk each criminal defendant poses. It would better distribute the costs of legal error. Paradoxically, a system of scaled punishments would likely reduce net incarceration in the United States. Factual uncertainty is pervasive in criminal law, and a system of scaled punishments would respond to uncertainty more rationally.
Disciplines
Publication Date
2013
Citation Information
Matthew Wansley. "Scaled Punishments" New Criminal Law Review Vol. 16 (2013) p. 309
Available at: http://works.bepress.com/matthew-wansley/10/