A growing trend in philosophical commentary about penal justice is what I loosely call “criminal law skepticism.” The scholarship I have in mind does not simply urge caution or a more judicious use of the criminal law to address social problems. Instead, its thrust is more sweeping and radical; it presents reasons to doubt that the criminal law as presently constituted should continue to exist at all. I make no concerted effort to categorize the several varieties or motivations for this trend; their forms and underlying rationales are diverse and frequently humane. No single argument can refute them all. Instead, I respond by describing the price that might be incurred if these skeptics were to achieve their objective. I list ten valuable functions served by the criminal law as it currently exists, several of which are too seldom appreciated in philosophical commentary. No case for criminal law skepticism is complete unless efforts are made to explain how alternatives to the criminal law can achieve these functions or afford to dispense with them.

The Supreme Court’s constitutional regulation of the American death penalty has yielded a plethora of doctrines that have shaped an alternative criminal justice process that is (mostly) limited to capital cases. Many of these doctrines offer a vision and practice of “roads not taken” in the ordinary criminal justice process that would be attractive improvements in that larger system. We consider three of these doctrines: (1) more searching review of the proportionality of sentencing outcomes; (2) imposition of a requirement of individualized sentencing that has led to the investigation and presentation of in-depth evidence in mitigation; and (3) greater regulation of the adequacy of defense counsel that has moved closer to a “checklist” model of mandated practices. Each of these doctrines was born and developed under the Court’s “death is different” regime of constitutional regulation, and each of them has to some limited extent moved beyond the strictly capital context into the broader criminal justice process. We explain how these alternative models present attractive improvements for the broader noncapital system—a view that casts the Court’s regulation of the American death penalty as a progressive laboratory that can yield alternative, more protective, and more idealized processes for the ordinary criminal justice system. Yet we also caution that the “differentness” of death—and of juvenile offenders, the noncapital context to which the Court is most likely to import its death penalty innovations—can also serve to normalize and entrench the less protective, less idealized practices that exist outside of these realms.

This article argues that we should rethink homeless people’s punishments for violating quality-of-life ordinances. Those ordinances prohibit acts that are deemed to constitute urban nuisances—urban camping, public urination, and sleeping on sidewalks among them. Violating quality-of-life ordinances can result in expensive fines, administrative fees, and civil consequences for unpaid fines. In line with other scholars’ work, this article demonstrates how our current punishment scheme entrenches individuals in homelessness and operates like a self-fulfilling prophecy. Lacking a private property right and stuck in a cycle of homelessness, homeless people will continue to alleviate their needs on public property and be subject to further coercion and punishment. Homeless people’s punishments for violating quality-of-life offenses are also objectionable because they violate three types of proportionality constraints: the gravity of the prohibited conduct, the homeless person’s moral blameworthiness, and their personal situation. This article proposes an alternate punishment scheme that minimizes the prospect of entrenchment in homelessness and remedies those three proportionality concerns. It argues that the state should adopt a day-fine model for financial penalties, implement criminal justice debt absolution frameworks, and rethink the civil and criminal consequences associated with unpaid fines. A more proportional punishment scheme is neither a solution to the reality of homelessness nor a substitute for the state’s responsibility to ensure better access to housing. However, this article’s proposals can mitigate the gravest consequences associated with homeless people’s punishments, prevent entrenchment in homelessness, and ensure homeless people are treated with greater respect.

This article considers the increased use of mandatory sentencing provisions in a range of jurisdictions, including Canada, Australia, the United States, and United Kingdom/Europe. It finds that, whereas some courts have struck out mandatory sentencing laws, often mandatory minimum penalties have been validated. This jurisprudence is considered through a range of themes, including notions of arbitrariness, the doctrine of proportionality, the relevance of objectives of the criminal justice system, and broader questions regarding the separation of powers.

In Miller v. Alabama , the Supreme Court appealed to neuroscience studies concerning the diminished capacities of adolescents to justify leniency in the sentencing of juvenile offenders. Reflecting on the recent proliferation of juvenile proportionality cases, the Court noted “[o]ur decisions rested not only on common sense—on what ‘any parent knows’—but on science and social science as well.” This Article casts a skeptical eye on the legal import of these scientific insights into the adolescent brain for normative evaluations of criminal culpability. Although the studies cited offer little probative value beyond the common sense wisdom about children that “any parent knows,” the Court’s efforts to employ psychiatric data to objectify mitigating criteria have distracted the Justices from analyzing the precise legal relationship between diminished capacity and diminished culpability , while intractably confusing the Eighth Amendment doctrine of proportionality. After analyzing the history of both proportionality review and the diminished capacity defense, this Article cautions that judges should not automatically equate factual findings of neurobiological abnormalities—that merely evidence diminished capacity—with a moral-legal conclusion of lessened culpability. Given the wide applicability of this defense, such reductionist interpretations contravene the principles of moral responsibility, which seek to differentiate culpability among individual offenders. As an alternative means of reconciling the burgeoning role of neuroscience with the established tenets of the criminal doctrine, this Article proposes a novel framework for assessing the mitigating effect of brain science that judges could equally apply to all classes of offenders, including juveniles.

This article challenges the principle that punishment is only justified after a defendant has been found guilty beyond a reasonable doubt. It proposes instead a system of scaled punishments in which a defendant’s sentence would be proportioned to the jury’s reported confidence level in the defendant’s guilt. The criminal justice system already implements a series of implicit scaled punishments in the form of plea bargains. This article defends the counterintuitive conclusion that a system of explicit scaled punishments would better satisfy the aims of retribution, incapacitation, and deterrence that we take to legitimate punishment. A system of scaled punishments would smooth out the moral discontinuity that our binary verdict structure creates. It would more precisely align the collateral consequences of criminal adjudications with the risk each criminal defendant poses. It would better distribute the costs of legal error. Paradoxically, a system of scaled punishments would likely reduce net incarceration in the United States. Factual uncertainty is pervasive in criminal law, and a system of scaled punishments would respond to uncertainty more rationally.

Our principal concern in this paper is with the accusation that hate crime legislation violates the principle of proportionality and related principles of just sentencing, such as parity, fair notice, and representative labelling. We argue that most attempts to reconcile enhanced punishment for hate crimes with the principle of proportionality fail. More specifically, it seems that any argument that tries to justify hate crime legislation on the grounds that such crimes are more serious because their consequential harms are worse or their perpetrators are more culpable than their nonhateful counterparts will fail, and thus enhanced punishment will violate the principle of proportionality. Given the seeming irreconcilable tension between proportionality and hate crime legislation, we turn to consideration of hybrid theories of punishment that permit deviations from strict proportionality when needed to serve other important and legitimate purposes of sentencing. We argue that even if such hybrid theories can justify the enhanced punishments for hate crimes, existing theories cannot provide any principled limit on the extent from which proportionality can be deviated. We suggest such a limit and provide a principled justification for it.