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Deterrence, Retributivism, and the Law of Evidence

Legal scholarship has long treated substantive criminal law and evidence as two separate and distinct fields. The former largely concerns itself with evaluating substantive criminal law rules by reference to various animating theories—most prominently, those of deterrence and retributivism. Scholars, students, and policymakers laud or condemn doctrines based on notions of “just deserts” or ideas about the incentives they create for those disposed to commit a crime. When it comes to the numerous evidentiary and other rules that determine the course of prosecutions and proof, however, the conversation is different. Here, questions of reliability, evidential worth, and accuracy in fact-finding dominate the debate. References to the deeper concerns of deterrence and retributivism, and the significance of various evidentiary and procedural rules toward the program of one or the other, are by and large absent.

Our article “Mediating Rules in Criminal Law” challenges this conventional divide between evidence and substantive criminal law theory. Our claim is that the traditional understanding of evidentiary rules in criminal law as geared overwhelmingly to truth in fact-finding is incomplete. Evidentiary rules, we argue, also perform a deeper, systemic function by mediating latent conflicts between criminal law’s deterrence and retributivist objectives. They do this by skewing errors in the application of the substantive law to favor whichever theory has been disfavored by the substantive rule itself. So, for example, if retributivism dominates the substantive law of insanity, special evidentiary rules governing the presentation and proof of that defense might cabin it in a way that responds to deterrence concerns by making it more difficult to invoke successfully. These “mediating rules” of evidence do this, moreover, without undercutting retributivist objectives as significantly as would redrawing the substantive defense itself. How is this so? In the next few pages, we will sketch the outlines of our theory and offer a brief illustration.

Accentuate the Positive: Are Good Intentions an Effective Way to Minimize Systemic Workplace Bias?

In a recent article, Professor Bartlett argues that modifying legal tools in order to reduce implicit race and gender bias is a worthy goal, but one that is almost certainly unattainable. The modern workplace, in her view, is populated mostly by individuals who are well intentioned and committed to nondiscrimination. Legal “coercion” threatens their autonomy and sense of personal efficacy and, as a result, generates a backlash that is more likely to increase workplace bias than to reduce it. Instead of strengthening antidiscrimination laws, the most effective way to create workplace fairness is to restructure work in a way that facilitates our tolerant instincts. Doing so will reduce actions that are discriminatory and unlawful. At the same time, it will make us feel better about ourselves.

Separating Retribution from Proportionality: A Response to Stinneford

Professor John Stinneford follows his initial article concerning the original meaning of the Eighth Amendment with an excellent article in the Virginia Law Review, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause. In this latest piece, Stinneford argues that the original meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause includes not only a prohibition against barbaric punishments (defined as ones without “long usage”), but also against excessive or “disproportionate” punishments. Stinneford then advocates rethinking the Supreme Court’s Eighth Amendment evolving standards of decency jurisprudence to center the “cruel” inquiry on whether the punishment at issue is “proportionate,” in a retributive sense, in light of prior punishment practices.

Stinneford’s article is important both in that it legitimizes, from an originalist perspective, the use of proportionality in the application of the Eighth Amendment, and in that it offers a proposal for restructuring the application of the Eighth Amendment around this principle. In doing so, Stinneford uses his historical interpretation of the Eighth Amendment to argue for a new approach to applying proportionality in a solely retributive manner.

In this brief Response, I raise two possible objections to Stinneford’s analysis. First, Stinneford insists that proportionality must be solely a retributive concept for Eighth Amendment purposes, both as a matter of original interpretation and sound application. While retribution is certainly part of the “proportionality” analysis, I believe that utilitarian justifications of punishment are also relevant to the concept of proportionality. As explained below, this is true both as a matter of original interpretation and perhaps more importantly as a reasonable basis for the Court’s current application of the Eighth Amendment.

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