TY - JOUR
T1 - Constitutionalism and the criminal law
T2 - Rethinking criminal trial bifurcation
AU - Fisher, Talia
PY - 2011/1/1
Y1 - 2011/1/1
N2 - 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).
AB - 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).
KW - bifurcation
KW - constitutional law
KW - criminal law
KW - criminal punishment
KW - criminal trial
KW - culpability
UR - http://www.scopus.com/inward/record.url?scp=84255209606&partnerID=8YFLogxK
U2 - 10.3138/utlj.61.4.811
DO - 10.3138/utlj.61.4.811
M3 - ???researchoutput.researchoutputtypes.contributiontojournal.systematicreview???
AN - SCOPUS:84255209606
SN - 0042-0220
VL - 61
SP - 811
EP - 843
JO - University of Toronto Law Journal
JF - University of Toronto Law Journal
IS - 4
ER -