Criminal sanctions in the defense of the innocent.

• Author: Guttel, Ehud

Under the formal rules of criminal procedure, fact finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof that fact finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments--a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated convictions. By setting mandatory penalties of sufficient size, the legal system can induce fact finders to convict only if sufficient admissible evidence proves a defendant's guilt. This Article applies this theoretical framework to three concrete contexts that involve a high risk of erroneous convictions: inchoate crimes, the right to silence, and the punishment of recidivists. It shows that a sanctioning regime that is attuned to the probative function of punishment can protect innocent defendants from unsubstantiated convictions while obeying the dictates of both deterrence and retribution.

TABLE OF CONTENTS INTRODUCTION I. ENDOGENOUS EVIDENTIARY THRESHOLDS II. A THEORY OF PUNISHMENT AND INNOCENT DEFENDANTS III. CRIMINAL SANCTIONS AND THE DETERMINATION OF GUILT: APPLICATIONS A. The Law of Criminal Attempts 1. The Problem of Uncertain Intentions 2. Reducing Error Costs in Incomplete Offenses B. The Right to Silence 1. Inferring Guilt from Defendants' Refusals to Testify 2. The Virtue of Punishing Silence C. Punishing Recidivists 1. Criminal Record and the Risk of Wrongful Conviction 2. Protecting Defendants with Prior Convictions IV. OBJECTIONS CONCLUSION INTRODUCTION

The rules of criminal procedure presume a fixed standard of proof. A person accused of any criminal offense can be convicted only if sufficient evidence proves her guilt "beyond a reasonable doubt." (1) While legal scholarship has debated the standard's precise probabilistic requirement, (2) it has uniformly assumed that its meaning is the same across different criminal contexts. (3) Whether the applicable penalty is a fine, probation, or imprisonment, fact finders are expected to apply an identical evidentiary standard in all criminal cases.

A rich body of empirical and experimental studies indicates, however, that fact finders adjust the burden of proof in accordance with size of the applicable sanction. (4) These studies, as well as real-world examples, show that, rather than applying a fixed standard, judges and jurors often elevate the probative threshold for conviction as the severity of the punishment increases. Keeping all other variables constant, courts demand that the prosecution present more convincing proof of the defendant's guilt in the face of greater potential punishment. Thus, evidence that meets the threshold for obtaining a guilty verdict where a lenient penalty is involved does not necessarily meet the threshold for the same verdict where a harsher sanction is involved. Such behavior on the part of judges and jurors has been identified across a range of offenses and sanctions of varying severity.

As this Article demonstrates, legal scholars' misperception of the way in which fact finders determine guilt overlooks the probative function of criminal sanctions. (5) Because the size of the applicable punishment often determines the evidentiary threshold for conviction, criminal sanctions can adjust the standard of proof that fact finders apply. More specifically, this Article shows that the legal system may exploit this observed phenomenon to protect defendants against convictions founded on inadmissible or insufficient evidence. In cases in which fact finders decline to follow instructions regarding the information they may consider, designing a penalty that effectively raises the burden of proof can calibrate the scale for determining guilt. Similarly, where fact finders are likely to rely on unreliable incriminating evidence, raising the evidentiary bar by elevating the sanction can prevent the risk of unsubstantiated convictions.

Using criminal sanctions to incentivize fact finders enables the legal system to protect defendants in cases in which more direct approaches are unlikely to succeed. Arguably, convictions that are based on inadmissible or insufficient evidence can be prevented through regulation of the fact-finding process. Stringent jury instructions, for example, are expected to exclude inadmissible information from deliberations and to guide the jury as to the amount of evidence required to reach a conviction. Such direct regulation, however, has been proved ineffective in various contexts. (6) As observed both by scholars and practitioners, juries often disregard admonishing instructions and may convict defendants even when the prosecution fails to present an amount of admissible evidence that merits a conviction. By inducing fact finders to adjust their evidentiary standards, criminal sanctions can prevent unsubstantiated convictions in contexts in which the rules of evidence and criminal procedure fail to do so.

Legal analysis regarding the desirable levels of punishment has traditionally focused on retribution and deterrence. (7) Although these theories differ in many respects, they share the important premise that criminal sanctions should be designed in response to offenders' and victims' behavior. (8) Opposed to this offender- and victim-centered approach, the following discussion suggests the potential to construct penalties that will prevent unsubstantiated convictions. This insight--that sanctions can serve to protect defendants--introduces an overlooked paradigm in the context of criminal punishment. Furthermore, our analysis demonstrates that criminal sanctions can often be designed to protect defendants from erroneous convictions without sacrificing the dictates of either retribution or deterrence. A carefully crafted penal regime can reduce the number of defendants who are wrongfully convicted, while at the same time subjecting guilty defendants to an appropriate sanction.

This Article shows how the legal system may harness fact finders' tendency to adjust the burden of proof in accordance with the size of the sanction in three concrete contexts: inchoate offenses (criminal attempts), the right to silence, and the punishment of recidivists. Legal scholarship has suggested that defendants in these circumstances often face a heightened risk of being convicted on the basis of inadmissible or insufficient evidence. The conventional tools that the legal system employs to ensure the integrity of the criminal process seem ineffective in such circumstances. This Article highlights the virtue of setting mandatory sanctions of sufficient size in these contexts. By applying such a regime, the legal system can prevent wrongful convictions in criminal attempt cases while sustaining the crime-control benefits associated with punishing incomplete offenses, strengthen the right to silence without harming those who exercise it, and reduce the risk of wrongful convictions for defendants who have a criminal record.

The paradigm that our analysis presents is tied to the current debate surrounding the increasingly mandatory nature of the American sentencing system. Since the 1980s judicial discretion with respect to sentencing has been systematically reduced. (9) This trend has recently been addressed in the Supreme Court's decision in United States v. Booker, (10) holding that the mandatory nature of the federal sentencing guidelines is unconstitutional because it violates defendants' right to a jury trial. While critics of this trend raise valid and important concerns, (11) they have neglected to acknowledge the potentially beneficial effect that a system incorporating this feature has on fact finders' decisions. As this Article's analysis shows, the imposition of mandatory sanctions of sufficient size can discourage fact finders from convicting absent sufficient admissible evidence.

This Article unfolds as follows. Part I presents the findings on the interplay between the severity of sanctions and the evidentiary threshold for conviction. These findings show that, contrary to conventional wisdom, fact finders do not apply a fixed standard of proof, but instead adjust it in proportion to the size of potential punishment. Part II claims that criminal sanctions should be used to correct for the risk of erroneous convictions. While criminal law scholarship has traditionally focused on offenders and victims, this Part shows the virtue of designing criminal sanctions as a means to protect defendants from wrongful convictions. Part III explores this claim in three concrete contexts: the punishment of criminal attempts, the fight to remain silent, and the punishment of repeat offenders. It demonstrates

that by focusing on fact finders' incentives, the legal system can often protect defendants from erroneous convictions without sacrificing the other goals of punishment. Part IV addresses possible objections to this proposal from both doctrinal and practical perspectives. It shows that the proposed penal regime can be applied while maintaining the rules that shield fact finders from information regarding penalties, and that it can also give rise to concrete policies. Finally, the Conclusion highlights the potential implications of this Article's analysis beyond the realm of criminal sanctions.

1. ENDOGENOUS EVIDENTIARY THRESHOLDS

   This Part reviews the evidence regarding the connection between the size of sanctions imposed by the legal system and the amount of evidence that triers of fact require in order to convict defendants. Empirical studies, policymakers' and judges' experiences, and legal doctrine itself all show that the evidentiary threshold for conviction is...