Discontinuities in Criminal Law

Avlana K. Eisenberg


The law values fairness, proportionality, and predictability.
Accordingly, in the context of criminal law, punishments should be
carefully calibrated to reflect the harm caused by an offense and the
culpability of the offender. Yet, while this would suggest the dominance
of “smooth” input/output relationships—for example, such that a
minuscule increase in culpability would result in a correspondingly
small increase in punishment—in fact, the law is laden with “bumpy”
input/output relationships. Indeed, a minuscule change in input (be
it of harm, culpability, or any number of other measures) may result
in a drastic change in output, creating significant discontinuities.
Leading scholars have argued that smooth input/output relationships,
which feature careful gradation and calibration, better accord with
dominant theories of punishment than do bumpy relationships, which
lack fine-tuning. Accepting as a starting premise that smooth input/
output relationships are to be preferred in the criminal law, this Article
focuses on the significant doctrinal and practical impediments to
smoothing out these relationships. This analysis reveals challenges
to smoothing out relationships between inputs and outputs, as
well as the difficulties associated with addressing discontinuous
relationships among inputs and outputs. Specifically, it exposes the
law’s classification of inputs and outputs itself as contestable and
responsible for a range of hard-to-resolve discontinuities. In doing
so, this Article begins the task of laying the groundwork for further
analysis and possible reforms.

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