Divine Justice and the Library of Babel: Or, Was Al Capone Really Punished for Tax Evasion?

25 Pages Posted: 5 Aug 2019

See all articles by Gabriel Mendlow

Gabriel Mendlow

University of Michigan Law School; University of Michigan at Ann Arbor - Department of Philosophy

Date Written: 2018

Abstract

A criminal defendant enjoys an array of legal rights. These include the right not to be punished for an offense unless charged, tried, and proved guilty beyond a reasonable doubt; the right not to be punished disproportionately; and the right not to be punished for the same offense more than once. I contend that the design of our criminal legal system imperils these rights in ways few observers appreciate. Because criminal codes describe misconduct imprecisely and prohibit more misconduct than any legislature actually aspires to punish, prosecutors decide which violations of the code merit punishment, and judges decide how much punishment specific violations warrant. In making these decisions, prosecutors and judges rely on evidence beside that which is necessary to sustain a conviction, including evidence of an offender’s extraneous transgressions. This practice calls into question whether offenders are being punished for the offenses of which they’re formally convicted or instead for the extraneous transgressions that inform the exercise of official discretion. As I argue, theory and common sense alike suggest that the offense an offender is punished for is determined less by the formal features of the criminal process than by that process’s social meaning, which itself is determined at least in part by the motivations of the participating legal actors. Because we lack a sound basis to resolve these matters, we may not know how often our legal system dishonors the rights it proclaims sacrosanct.

Keywords: punishment, prosecutors, judges, discretion, sentencing

Suggested Citation

Mendlow, Gabriel, Divine Justice and the Library of Babel: Or, Was Al Capone Really Punished for Tax Evasion? (2018). Ohio State Journal of Criminal Law, Vol. 16, No. 1, 2018. Available at SSRN: https://ssrn.com/abstract=3429965

Gabriel Mendlow (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

University of Michigan at Ann Arbor - Department of Philosophy ( email )

Ann Arbor, MI
United States

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