Half the Guilt

Talia Fisher


Criminal law conceptualizes guilt and the finding of guilt as purely
categorical phenomena. At the end of trial, the defendant is pronounced
either “guilty” or “not guilty” of the charges made against her,
excluding the possibility of judgment of degree. Judges or juries
cannot calibrate findings of guilt to various degrees of epistemic
certainty by pronouncing the defendant “probably guilty,” “most
certainly guilty,” or “guilty by preponderance of the evidence.” Nor
can decision makers qualify the verdict to reflect normative or legal
ambiguities. Findings of guilt are construed as asserting factual and
legal truths. The penal results of conviction assume similar “all or
nothing” properties: punishment can be calibrated, but not with the
established probability of guilt.
The prevailing decision-making model, with its ‘on-off’ formulation
of guilt, is so broadly established that it is considered an axiom—
but there is nothing natural or pre-political about it, nor about the
derivative distribution of punishment. This Article attempts to expose
the hidden potential rooted in the construal of criminal verdicts as
judgments of degree, by drawing three hypothetical manifestations
of a linear conceptualization of conviction and punishment in the
criminal trial and plea-bargaining arena. It also offers a normative
assessment of converting criminal verdicts from categorical decisions
to continuities.

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