INTRODUCTION 758 I. BACKGROUND: THEORIES OF PUNISHMENT AND ERROR TRADEOFFS 761 A. Theories of Punishment 761 B. Error Tradeoffs and the Criminal Process 765 II. A THEORY OF EVIDENTIARY UNCERTAINTY AND CRIMINAL LIABILITY 771 A. Evidentiary Graded Criminal Sanctions 771 B. Evidentiary Grading Through the Substantive Rules of Criminal Law 776 C. The Problem of Intentionally Punishing the Innocent 780 III. EVIDENTIARY GRADATION OF SANCTIONS: APPLICATIONS 783 A. The. Objective Elements of the Crime 783 B. States of Mind 791 C. The Interaction Between the Objective and the Subjective Elements of the Crime 798 IV. UNDERSTANDING THE EVIDENTIARY STRUCTURE OF CRIMINAL LAW 800 A. The Psychological Perspective: Relaxing the Burden of Proof While Adhering to a Rigid Moral Constraint 801 B. The Consequentialist Perspective: Tailoring the Burden of Proof to Fit the Context 803 C. The Expressive Perspective: Sustaining the Social Meaning of a Conviction 805 CONCLUSION 808 INTRODUCTION
One of the greatest tenets of criminal law is that an individual should be held responsible if and only if his guilt is proven beyond a reasonable doubt. Whether this point is phrased in Blackstone's formulation that it is "better that ten guilty persons escape, than that one innocent suffer" (1) or Benjamin Franklin's more demanding one that "it is better a hundred guilty persons should escape than one innocent person should suffer" (2) or Maimonides's even tougher standard that "it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death once in a way," (3) the core idea is the same, which is that the legal system should strive to minimize the conviction of innocent defendants by taking all feasible precautions against false convictions. (4)
This Article argues that the legal system routinely relaxes the burden of proof in criminal adjudication by adjusting the substantive content of criminal law. More specifically, it suggests that legal prohibitions are designed, among other things, to create a correlation between the severity of the sanction and the degree of certainty that the defendant deserves to be punished. According to this framework, defendants whose guilt is proven to a high level of certainty receive the full penalty they deserve, while defendants whose guilt is proven to a lower degree of certainty are convicted of specially crafted offenses that de facto reduce the evidentiary threshold for a conviction. Given the elevated risk of error associated with these offenses, the punishments attached to them are discounted. The overall picture is one in which penalties are distributed among defendants in proportion to the probability that they deserve to be punished, even when their guilt has not been proven beyond a reasonable doubt.
The bulk of the arguments presented in this Article are positive in nature. They delineate significant doctrinal domains within criminal law that are geared towards dealing with defendants whose culpability has been proven to a high degree of certainty but not beyond a reasonable doubt. More specifically, it will be shown that doctrines relating to both the objective and subjective elements of the crime align punishments with the adjudicator's confidence of wrongdoing. In this regard, the presented analytical framework sheds new light on core questions of criminal law. For example, legal analysis of inchoate crimes views liability in this realm as an all-or-nothing endeavor. (5) According to this line of thought, criminal responsibility moves in only when the defendant's conduct crosses the legal threshold that differentiates between preparatory acts (which are not crimes) and attempts (which are crimes). (6) The presented theory suggests that criminal liability for inchoate crimes calibrates punishments to the degree of proof presented at trial in a continuous and nuanced fashion. (7) Viewing the criminal framework in its entirety, the interaction between preparatory crimes, criminal attempts, and complete crimes suggests that as more inculpating evidence is mounted against the defendant, additional crimes with stiffer penalties come into play.
More generally, this Article challenges the perceived wisdom that the evidentiary threshold encapsulated by the burden of proof creates a dichoto-mous penal regime. (8) In this regime, those whose guilt is proven beyond a reasonable doubt are subject to harsh criminal sanctions, whereas those whose guilt is proven to a somewhat lower degree get to go home scot-free. (9) Professor Talia Fisher, for example, assumes that the "binary threshold model dictates that the manifold aspects of criminal culpability be ultimately translated into the legal lexicon's strict, one-dimensional terms of conviction or acquittal." (10) This Article argues that this common assumption does not adequately depict the manner in which the criminal justice system operates. An appreciation of the evidentiary role of substantive criminal law suggests a much more refined penal regime that is attuned to both questions of culpability and proof.
Aside from its positive dimension, this Article will also examine the deeper question of why criminal law turned to substantive norms to relax the standard of proof rather than adjusting the standard itself. While this question has an apparent and straightforward doctrinal answer that stems from the enshrined constitutional status of the beyond reasonable doubt standard, (11) a close examination reveals that existing practices are also grounded on principled considerations external to constitutional constraints. More specifically, it will be shown that there are considerable advantages to incorporating evidentiary uncertainty into the definition of crimes that reflect psychological, expressive, and consequential concerns.
The thesis presented in this Article is part of a growing body of work that aims to unite the analysis of substantive legal norms with the analysis of procedural and evidentiary norms. (12) In traditional legal scholarship, there is a clear divide between substance and process. (13) While the former is vested with the responsibility for setting out the primary rules that guide the public regarding which types of behavior are permissible and which are not, the latter is charged with ascertaining the relevant facts of a particular case in a precise fashion. According to this line of thought, "procedure really is procedure, and substance really is substance, so that the one can never truly be the functional equivalent of the other." (14) However, as the legal literature acknowledged long ago, this clean divide does not always hold. (15) Procedural and evidentiary rules can play a role in the regulation of primary behavior, and substantive rules can be used to influence the fact-finding process. Consequently, their analysis should be united into a single framework. This Article attempts to achieve this end in the context of the decision threshold applied in criminal cases and the structure of the substantive norms of criminal law.
The Article proceeds as follows. Part I consists of a literature review upon which the Article is built. As this review suggests, existing theories of punishment focus on the primary goals of punishment (e.g., just desert and deterrence) and neglect to account for the strength of the evidence as a distributing principal of punishment. At the same time, theories dealing with error tradeoffs in the criminal justice system tend to focus exclusively on the rules of procedure and evidence as the sole policy tools that influence such tradeoffs. Part II presents an evidentiary theory of punishment according to which sanctions are calibrated to the degree of certainty that wrongdoing has occurred. Part III surveys numerous concrete examples that demonstrate the operation of the theory in practice and establishes that significant parts of the criminal law can be viewed as tools to distribute sanctions in proportion to the probability of wrongdoing. Part IV discusses why the law evolved the way it did, rather than taking a more straightforward approach that would explicitly acknowledge that sanctions are calibrated to the quality of evidence presented. This discussion will shed new light on core issues of criminal law, such as the role of deontological constraints on setting penal policies and the importance of the expressive function of criminal law. Finally, the Conclusion consists of some final remarks and highlights potential paths for future research.
BACKGROUND: THEORIES OF PUNISHMENT AND ERROR TRADEOFFS
This Part briefly reviews the literature on which this paper builds. It opens with an overview of the literature on the theories of punishment and shows that this literature has focused on the primary justifications of punishment--just desert, deterrence, rehabilitation, etc.--when determining what the level of punishment should be. It then turns to examine the literature on error tradeoffs in criminal trials and demonstrates that this body of work has focused on the burden of proof as the sole tool through which errors can be traded off.
Theories of Punishment
As the introductory part of any criminal law course will probably demonstrate, the two core theoretical questions that jurists dealing with punishment address are: (1) what justifies the practice of punishing criminals (i.e., why do we punish?), and (2) given a justification, how should sanctions be distributed among offenders (i.e., how much should we punish?). (16) Interestingly, legal scholars routinely assume that the answers to these two questions are connected; (17) that is, that the distribution of sanctions between offenders should be based on the theory that justifies the application of those sanctions in the first place. This justification-distribution framework has led to a rather stable equilibrium within criminal law scholarship that focuses on a more-or-less fixed list of...