Constitutionalism and the criminal law: Rethinking criminal trial bifurcation

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The article challenges the bifurcation of criminal trials into two distinct phases of conviction and sentencing, as well as the all-or-nothing sentencing regime that such separation facilitates. Pointing to the sub-optimality of the bifurcation of decision-making regarding guilt and punishment, the article proposes an alternative sentencing regime - comparative sentencing - in which the severity of the punishment is correlated with the probability of guilt. It shows that in the epistemic space above the 'beyond a reasonable doubt' threshold, comparative sentencing has a greater deterrent effect than uniform punishment, detached from certainty of guilt. It also demonstrates that when the level of certainty as to the defendant's guilt does not meet the 'beyond a reasonable doubt' standard, the imposition of partial punishment, reflecting epistemic certainty as to the defendant's culpability, may also lead - in certain circumstances - to better deterrence outcomes than the existing alternative of no punishment (full acquittal).

Original languageEnglish
Pages (from-to)811-843
Number of pages33
JournalUniversity of Toronto Law Journal
Issue number4
StatePublished - 1 Jan 2011


  • bifurcation
  • constitutional law
  • criminal law
  • criminal punishment
  • criminal trial
  • culpability


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