Do Theories of Punishment Necessarily Deliver a Binary System of Verdicts? An Exploratory Essay

Federico Picinali
2016 Social Science Research Network  
Scholars writing on theories of punishment generally try to answer two main questions: what human behaviour should be punished and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing-i.e., the question of the criminal standard of proof. Theories of punishment are ultimately theories about choices of action-in particular, about how to treat individuals. If this is correct, it seems that they
more » ... uld not overlook one of the fundamental variables governing human decision-making: the uncertainty about the facts relevant to our acting. Now, the question as to whether existing theories of punishment require a standard of proof as high as 'proof beyond a reasonable doubt' is gaining increasing attention in the scholarship. However, scholars working on theories of punishment give little attention to a particular way in which human decision-making handles the problem of uncertainty. In our everyday lives, we often decide in a manyvalued, rather than a binary, fashion. Instead of having a single evidential threshold, the satisfaction of which determines whether we act or stay put, we tend to adjust our actions to our degree of confidence in certain states of affairs. In other words, we decide based on a ladder of evidential thresholds: the features of our actions vary according to the evidential threshold that we have satisfied. Notably, criminal trials do not follow this structure and theorists generally take this departure for granted. Why shouldn't trials work as 'ex post facto bets,' whereby the response that the state is willing to 'wager' correlates with the fact finder's confidence in the defendant's guilt? The paper explores this question; in particular, it assesses whether the main theories of punishment (consequentialist, retributive, and communicative) necessarily deliver a binary system of verdicts. The work is part of a long-
doi:10.2139/ssrn.2758205 fatcat:dt275ofjffgetcduoj6kcgsaba