The Bumpiness of Criminal Law

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.

Keywords: punishment, retributivism, consequentialism, sentencing, smooth, bumpy