Probability and Punishment: How to Improve Sentencing by Taking Account of Probability

Jacob Schuman

Harvard University - Law School - Alumni

January 7, 2014

New Criminal Law Review, Forthcoming

The United States Sentencing Guidelines place little emphasis on probability. Instead, the Guidelines recommend a sentence in each case based only on whether certain facts about the offender’s crime exceed a “threshold” level of likelihood. Guidelines sentences therefore fail to reflect the precise odds of each defendant’s wrongdoing, which makes them both inefficient and unfair. This model of decision-making is particularly problematic in drug sentencing, where judges often impose lengthy sentences based on drug quantity calculations that carry a high risk of error. To address these problems, district courts should exercise their discretion and policymakers should implement reforms that incorporate probability into punishment.

Number of Pages in PDF File: 46

Keywords: criminal law, criminal procedure, sentencing, drugs, quantity, probability

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Date posted: January 9, 2014 ; Last revised: March 27, 2015

Suggested Citation

Schuman, Jacob, Probability and Punishment: How to Improve Sentencing by Taking Account of Probability (January 7, 2014). New Criminal Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2376066 or http://dx.doi.org/10.2139/ssrn.2376066

Contact Information

Jacob Schuman (Contact Author)
Harvard University - Law School - Alumni ( email )
5163 Massachusetts Ave
Cambridge, MA 02138
United States
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