A Theory of Differential Punishment

61 Pages Posted: 8 Feb 2017 Last revised: 24 Oct 2017

Date Written: October 7, 2017


A puzzle pervades the criminal law: Why is it that two offenders who behave identically are sentenced differently when one of them, due to circumstances beyond her control, causes a harmful result? Through first proposing a novel deconstruction of this question by separating theories of punishment into two broad categories (namely, offender-facing and victim-facing justifications for punishment), the Article demonstrates that results-based “differential punishment” in the criminal law can only be justified, if at all, by victim-facing theories. The Article then makes its central claim: while victim-facing theories may be capable of justifying results-based punishment in respect to many types of offenses, there are three distinct classes of offenses for which everyone should agree that differential punishment is unjustified. We conclude by showing how applying our framework would reduce the unnecessary incarceration of a significant class of criminal offenders, without sacrificing any legitimate goals of the criminal justice system.

Keywords: criminal law, theory of punishment, legal philosophy, differential punishment

Suggested Citation

Boeglin, John and Shapiro, Zachary, A Theory of Differential Punishment (October 7, 2017). Vanderbilt Law Review, Vol. 70, No. 5, 2017. Available at SSRN: https://ssrn.com/abstract=2910719 or http://dx.doi.org/10.2139/ssrn.2910719

John Boeglin

Independent ( email )

No Address Available

Zachary Shapiro (Contact Author)

Davis Polk & Wardwell LLP ( email )

450 Lexington Avenue
New York, NY 10017
United States

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