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Licensed Unlicensed Requires Authentication Published by De Gruyter July 3, 2021

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.

* Gary & Sallyn Pajcic Professor, Florida State University College of Law. I am grateful to Courtney Cahill, Ronald Eisenberg, Talia Fisher, John Goldberg, Adam Kolber, Youngjae Lee, Laura Rosenbury, Emily Satterthwaite, Bob Weisberg, and participants in the Legal Discontinuity conference at Tel Aviv University for helpful comments and conversations. Cite as: Avlana K. Eisenberg, Discontinuities in Criminal Law, 22 THEORETICAL INQUIRIES L. 137 (2021).

Published Online: 2021-07-03
Published in Print: 2021-01-27

© 2021 by Theoretical Inquiries in Law

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