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October 28, 2008


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Rishi Nair

This is quite possibly the WORST idea for our criminal justice system since mandatory sentencing. How does this idea fulfill either retributivist ideals of punishing those that deserve punishment or utilitarian ideals (Bentham is likely rolling in his grave) concerning deterrence or rehabilitation? Our justice system is predicated on people having the benefit of the doubt. The Rule of Lenity, burden of proof/persuasion, as well as other fundamental ideas spring from the idea that we would, as a rational, reasonable society, rather release a guilty man than convict an innocent man (and deprive him of his rightful freedom). We need only look to what "our" Founding Fathers endured to see why this system exists. Aggregating crimes is such a repugnant and silly idea that I'm really ashamed to have attended the University of Chicago. We charge individuals with specific crimes simply because we wanted to ensure that our criminal justice system wouldn't be abused like this! The Constitution will need some scotch guard to protect itself from the likes of the neo-con droves that occupy the black ugliness on the Midway.


Aggregating possibilities, as the author stated, can lead to a decrease in arbitrariness while at the same time increasing deterrence and maintaining current conviction levels. I certainly agree with the statement that we, as a society, should rather a guilty man go free than an innocent man go to prison, however; if we attach a weight to this preference, we can still allow a simple Bayesian analysis to aggregate possibilities in order to increase deterrence and preserve personal freedom. Preserving personal freedoms should not necessarily grant all conditional probabilities of dependent crimes to the verdict of "innocent".

Uzair Kayani

My sense is, that given the underlying commitment to criminal defendants' rights, aggregating possibilities is more likely to reduce criminal penalties than increase them.

If a person who is guilty just barely beyond a reasonable doubt (say 95% probability) of four unrelated crimes, then he may be convicted of only three, since the sub-reasonable doubts of four cases aggregate to a reasonable doubt in one (or even two). So the defendant might be penalized for only the middle two crimes, or the two least serious ones.

On the flip-side, where there is only a slightly reasonable doubt regarding each of the four crimes, we would have a tougher time aggregating in order to penalize the defendant, because there are Due Process, pseudo-Double Jeopardy, and other criminal law doctrines blocking our way. So it seems aggregation would only cut in the defendant's favor.

I thought this was an excellent theoretical work.

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