The economic case for conviction multiplicity

Abstract

Evidence law categorises convictions in purely binary terms, excluding the possibility of judgment of degree. The derivative allocation of punishment also assumes a similarly binary, ‘all or nothing’ structure: punishment can be calibrated, but not with the established probability of guilt. The article will use economic analysis to formulate the deterrence-based case for deserting this binary conceptualisation, in favour of a multiplicity of conviction categories. The discussion will be devoted both to the context of plea bargaining and to the realm of the criminal trial: with respect to plea bargaining, the article will present the economic case for converting the criminal standard of proof into a negotiable feature of trial. In the trial context, the article will make the deterrence-based argument for calibrating the size of the sanction with the level of proof, in a manner which accommodates a host of conviction categories. Using these examples and the tools of economic analysis, the article will demonstrate how a multiplicity of conviction categories and derivative distribution of punishment could allow for a better realisation of the deterrence goals underlying the criminal justice system.