The life cycle of intentional crimes is often divided into three parts. First, you merely “prepare” to commit a crime during which time you have no criminal liability. Then, you attempt the crime during which time you are subject to, let’s say, roughly half or two-thirds of the criminal liability of the offense you were attempting. Finally, you complete the offense and are fully liable for it. The ways in which the law treats the life cycle are rather bumpy: changes in your conduct have little impact on your criminal liability within a particular stage of the life cycle but when you ever so slightly cross into the next stage, a small change in conduct can dramatically alter punishment amounts. Does the law reflect what our best theories of the criminal law say?
It depends. If you focus on culpability, you might think that deserved punishment ought to increase gradually as an offender gets closer to his criminal objective. (Alternatively, you might think culpability increases in spurts as the offender increases his wholehearted commitment to the plan.) If you focus on harm caused, you likely think deserved punishment increases rather suddenly (since the ultimate harm the statute is designed to avoid doesn’t occur until the moment the offense is completed). If you focus on the need to incapacitate a dangerous person, the appropriate punishment probably doesn’t change much (unless you think the person actually becomes more dangerous as his plan proceeds). We could go on like this but I think you see how the rate at which warranted punishment increases depends on: (1) the factor or set of factors that you think punishment should be responsive to and (2) at least sometimes, facts about the particular offender’s motivations, level of commitment, and so on that can be case specific.
At least as a general matter (that is, for many observers for many crimes), warranted punishment increases gradually as crimes proceed. For such people, they may be puzzled as to why the law punishes in a bumpy fashion given that pertinent input variables gradually increase. On the other hand, those who focus on culpability and dangerousness may find, in many instances, that warranted punishment does not change much at all as a crime proceeds. A person may mentally and emotionally commit to some offense and get down to serious business to make it happen. What does change, however, is our evidence that the person is serious about and capable of committing the crime. In such instances, we face a different puzzle: Should we allow the strength of our evidence to influence the amount of punishment we impose?
Sometimes we allow the strength of evidence to affect the punishment we impose, most notably in the context of plea bargaining. We don’t do this much, however, in formal sentencing contexts, at least not overtly. Why not some have asked? If we are 99.9% sure Defendant A is guilty, should he receive more punishment than Defendant B for whom we are 96% sure he is guilty (assuming they committed identical crimes, are otherwise alike, and independently satisfy the beyond-a-reasonable doubt standard)?
I’m particularly interested in the following issue that I raise here in more detail: If justice permits us to take the weight of the evidence into account in the law of attempt and in plea bargaining contexts, then it seems like we should also be permitted to do so in formal sentencing contexts as well. Alternatively, if justice does not, then plea bargaining looks questionable, along with, perhaps, the way we often treat attempts. Could it be that justice is indifferent as to whether amounts of evidence affect amounts of punishment? If so, when should the weight of evidence count and when shouldn’t it?
Posted by Adam Kolber on November 29, 2015 at 05:27 PM