Half the Guilt (by Talia Fisher)

Posted on behalf of Talia Fisher as part of the Legal Discontinuities Online Symposium:

Criminal law conceptualizes guilt and the finding of guilt as purely categorical phenomena. Judges or juries cannot calibrate findings of guilt to various degrees of epistemic certainty by pronouncing the defendant ‘most certainly guilty’ ‘probably guilty’, or ‘guilty by preponderance of the evidence’. Nor can decision makers qualify the verdict to reflect normative or legal ambiguities. The penal results of conviction assume similar “all or nothing” properties: punishment can be calibrated, but not with the established probability of guilt. In what follows I would like to offer a broadening of legal imagination and to unearth the hidden potential underlying  a linear conceptualization of guilt and punishment, as it may unravel in the context of the criminal trial and in the realm of plea bargaining.

Probabilistic sentencing- namely, calibrating sentence severity with epistemic certainty- is one prospect for incorporating linearity into criminal verdicts and punishment.  The normative appeal of probabilistic sentencing is rooted in deterrence and expressive considerations. From a deterrence perspective there is room to claim, that in cases where the criminal sanction generates a social cost that is a function of its severity (all incarcerable offenses) probabilistic sentencing can be expected to facilitate a higher level of deterrence as compared to the prevailing “Threshold Model”, for any given level of social expenditure on punishment. [1] As for expressive considerations:  While at first glance calibrating sentence severity with epistemic certainty would seem to undermine the expressive functions of the criminal trial by severing the connection between severity of punishment and the force of the moral repudiation, closer scrutiny reveals that it could actually allow for refinement of the criminal trial’s expressive message. The question of criminality invokes the most complex and tangled categories dealt with in law, interweaving the descriptive and the normative. The prevailing “Threshold Model” dictates that the manifold aspects of criminality and criminal culpability be ultimately translated into the legal lexicon’s strict, one-dimensional terms of conviction or acquittal. But, such an impoverished conceptualization may result in the loss of valuable information. A probabilistic regime, in contrast, would allow for a more accurate reflection of the gray areas that permeate criminal culpability. Moreover, under the prevailing “Threshold Model”, acquittal covers a vast epistemic space, and therefore cannot effectively signal clearance of a defendant’s name. Under a probabilistic regime, on the other hand, the message of acquittal is of expressive meaning and significance, due to the narrowing of the epistemic space it encompasses.  

Beyond the normative appeal of probabilistic sentencing, there is room to claim that central criminal law doctrines and practices already exhibit its underlying logic, and effectively deviate from the “Threshold Model” ideal, with its “all-or-nothing” binary outcomes. Some of these doctrines, such as the residual doubt doctrine, create an explicit correlativity between certainty of guilt and severity of punishment. Other legal practices, such as the “jury trial penalty” and the “recidivist sentencing premium, forge an indirect reciprocity. Thus, the imposition of harsher sentences on convicted defendants who chose to assert their constitutionally-protected procedural rights—most notably, the right to trial by jury—has become routine practice in many American courtrooms. It can be understood as an expression of the link between certainty of guilt and severity of punishment. The relative gravity of sentences in jury trials is reflective of the elevated certainty as to guilt in the wake of a jury verdict, whereas the relatively lenient sentences in bench trials is due, at least in part, to a lower degree of epistemic confidence in the conviction (despite the fact that both  convictions may surpass the BARD threshold).  The same holds true for the recidivist premium. The additional information submitted post-conviction—regarding the defendant’s prior convictions—reinforces the convicting versict and pushes the probability of guilt, which has already been substantiated (as inferred from the mere fact of conviction), to a point that comes even closer to absolute certainty.

Moving to the plea bargaining arena:   If criminal convictions were to assume linear properties, more features of the criminal trial- most notably the standard of proof- could be turned into negotiable default rules. The parties may opt for a lowering of the standard of proof in return for partial sentencing mitigation in situations where their marginal rates of substitution between (units of) sentencing and (units of) proof waiver equalize at an intermediate point between a full trial and a full plea bargain. Under those circumstances, deals for partial conversion of some units of reduction in the evidentiary demands in exchange for some units of punishment are likely to improve the situation of both prosecution and defense as compared to full conversion (plea bargains) or a full non-conversion (trial according to the beyond-a-reasonable-doubt standard). From a welfare perspective, changing the criminal standard of proof to a default rule would allow the prosecution and defendant to exchange sentencing mitigation for evidentiary waivers not only en bloc, but also in a more compartmentalized manner. Such expansion of the spectrum of choice as to the exercise of the right to have one’s guilt substantiated beyond a reasonable doubt,, can be said to facilitate the defendant’s welfare and choice-making capacities. It could similarly enrich the set of options made available to the prosecution in its pursuit of the social objectives underlying the criminal justice system. There is room to claim, in other words, that the normative considerations which support the institution of plea bargaining (and the contractual ordering of criminal arena, more generally) are further promoted when convictions assume linear properties.

[1] Henrik Lando, The Size of the Sanction Should Depend on the Weight of the Evidence, 1 Rev. L. & Econ. 277 (2005).  

This post is adapted from a draft paper to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.