The Injustice of Bumpy Laws

Whether a person has been sexually assaulted can turn on the reasonableness of a defendant's belief that the alleged victim consented. Presumably, the more reasonably one believed consent was given, the less culpable one is for proceeding with sexual intercourse. Similarly, the more reasonably one believed consent was given, the less dangerous one is likely to be. For both these reasons, the amount of punishment a person receives should be at least in part a function of the reasonableness of his belief in consent. In my terminology, reasonableness is an input into a legal decision that likely ought to have a smooth relationship with the pertinent output: amount of punishment. As the input gradually increases, the output gradually decreases. At some point, a person's beliefs are sufficiently reasonable that he no longer warrants any punishment (because he is not sufficiently culpable or because the costs of punishing him exceed the benefits).

In this instance, we seem to prefer smoothness in theory, but the criminal law's treatment is in fact quite bumpy. One person deemed just reasonable enough that consent was given may have no criminal liability while a similarly-situated person who was just a bit less reasonable may be sentenced to at least the statutory minimum. Even though both defendants are virtually alike in terms of culpability and dangerousness, they are treated quite differently under our bumpy treatment of beliefs about consent: gradual changes to the reasonableness input do not affect conviction, except at a critical threshold. At that threshold, a gradual change in reasonableness has enormous effects. 

So there appears to be a deviation between our normative theories of criminal law and what the law actually does. Now, criminal law may actually be less bumpy than many other areas of the law. At sentencing, judges can smooth the relationship to some degree by giving more reasonable offenders shorter sentences than less reasonable ones. But judges are often limited by statutory minima. Such minima may have certain advantages, too, by controlling the allocation of sentencing discretion. But the value of such discretion must be weighed against the harms of deviating from our best theories of just punishment. And many retributivists are committed to never knowingly overpunishing an offender, allocations of discretion be damned.

Even in the absence of statutory minima, most of us--judges included--are simply not closely attuned to the smooth-bumpy distinction. So many would look askance at a judge that gave a very light sentence for rape, even though there must be cases that closely straddle the line between guilty and not guilty. And other bumpy features of criminal justice cannot be mended by eliminating statutory minima. For example, for every day defendants spend in pretrial detention, they usually receive one day of credit against any punishment they may subsequently receive. But what if offenders spend pre-trial time in drug rehabilitation facilities that are less confining than jail but more confining than, say, house arrest?  Jurisdictions treat such issues in a bumpy manner. They either give full credit or no credit, even though there is a much smoother approach: give partial credit. We're surely used to thinking of criminal law in bumpy, all-or-nothing terms, but when you look for ways to smooth the law, you find many opportunities.