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in his quest to have sex with a minor. We may wish to stop such an actor. Nevertheless, we cannot punish such an actor.

Our view may present a new obstacle for law enforcement, but we believe that this obstacle can be overcome. Police will be able to intervene at the point at which the actor causes fear, as consciously risking causing fear for the purpose of risking harm is itself a culpable act. In addition, law enforcement may stop and detain an individual before the point that justifies arresting the actor.176

There is also the question of preventive detention. When we may permissibly detain someone who has not committed a culpable act is a difficult question.177 After all, these detentions, or “quarantines,” are not based on what people have done but rather on what these individuals might do or likely will do. For this reason, we must have extremely good predictive abilities before we can even begin to justify detaining them, given that they are neither culpable nor nonresponsible. How good must we be at such prediction? This is a troublesome question, but at least it is the right question. As Paul Robinson aptly describes the problem, at the moment the criminal law “cloaks” preventive detention as criminal justice.178 But the criminal code we advocate does not allow for such deception. If we wish to restrict people’s liberty – not because they deserve it – but because we predict they will harm others, then we need to analyze when and if we may do so. We believe that a virtue of our code is that it unmasks this issue and refuses to conceal preventive detention within the rubric of the criminal law.

F. PROCEDURAL, EVIDENTIARY, AND SENTENCING CONSIDERATIONS

The practical implementation of the criminal law will inevitably involve some trade-offs. Burdens of proof affect the allocation between false positives (punishing the innocent) and false negatives (freeing the guilty).179

176See Terry v. Ohio, 393 U.S. 1 (1968).

177See Stephen J. Morse, “Neither Desert nor Disease,” 5 Legal Theory 265 (1999).

178See Paul H. Robinson, “Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice,” 114 Harv. L. Rev. 1429 (2001).

179Some argue that the trade-off is broader still, as one may trade off innocents against innocents – the innocent victim versus the innocent accused. See, e.g., Cass R. Sunstein and Adrian Vermeule, “Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs,” 58 Stan. L. Rev. 703 (2005). We disagree with Sunstein and Vermeule because they fail to see that not punishing the innocent and not punishing the less culpable as if

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Evidentiary rules affect the admissibility of evidence in determinations of guilt and innocence. Plea bargains sacrifice punishing the guilty to the full extent of their retributive desert under situations of epistemic uncertainty and limited resources. Sentencing departures allow the government to reward cooperation and plea bargaining and allow the court to take account of specific defendant characteristics, such as extraordinary family circumstances.

No real-world code can fail to take account of these practicalities. Of course, having defended a comprehensive view of criminal culpability, we believe that, at this point, it would be far too ambitious an endeavor to undertake solving all these real-world concerns. Moreover, as we noted in Chapter 1, some of these questions are deeper questions about retributivism, questions that we do not undertake to answer here. Nevertheless, we conclude with some passing thoughts about these final implementation questions.

1. Burdens of Proof and Evidentiary Rules

The “beyond a reasonable doubt” standard for conviction prevents false positives at the expense of false negatives. However, according to some theorists, retributivism as a theory is agnostic about this allocation.180 We doubt, however, that a criminal law theorist can also be agnostic. That is, one question – and this is not a question we answer here – is whether this trade-off is a question for a retributivist.181 However, it is certainly clear that a criminal law theorist who adopts retributive principles will ultimately need an account of rights and an account of political theory that determines how the right against being unjustly punished – punished more than one deserves – is to be weighed against the goal of seeing the guilty receive their just deserts. We doubt these two are of equal weight. As Peter Westen states, “Of all the injustices that can be wrongly inflicted in the name of the people, there is scarcely any as

they were more culpable are deontological constraints that apply to the government in the same way that they apply to individuals.

180See Richard A. Bierschbach and Alex Stein, “Mediating Rules in Criminal Law,” 93 Va. L. Rev. 1197, 1208 (2007) (“retributive theory expresses no strong preference for whether such rules skew more toward the side of false positives or more toward false negatives”).

181According to Michael Moore, the question is whether one is a deontological retributivist or a consequentialist one. See Moore, supra note 16, at 156–158.

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great as punishing a person – and, thus, holding him out to deserve to suffer hard treatment by virtue of having engaged in prohibited conduct – when he did not engage in the conduct the statute prohibits.”182 Nevertheless, one needs richer theory than we have developed here to account for how this trade-off can be made and thus to assess whether the reasonable doubt standard strikes the correct balance.

2. Plea Bargaining

Like allocations of the burden of proof, the propriety of plea bargaining depends on the extent to which one believes that giving people their just deserts is a duty or whether it is simply an intrinsic good.183 We do believe, though, that a retributivist who denies the permissibility of plea bargaining loses any power to influence the application of her theories to the real world in which resource limitations require tradeoffs.184 Moreover, as we discussed earlier in this section, we also believe that there are more and less principled ways to go about exercising such prosecutorial discretion.

3. Sentencing Considerations

Along with the other consequentialist trade-offs we have mentioned, there may be occasions when it is appropriate for a sentencing judge to take factors into account that do not pertain to the desert of the offender. We recognize that retributive desert may be trumped, overridden, or outweighed by some consequentialist concerns. When the need to decrease punishment is sufficiently costly to other worthwhile goals (a test we do not even attempt to quantify here), the actor’s punishment may be decreased.

There are myriad reasons to reduce punishment. Plea bargaining and witness immunity are typical examples.185 Moreover, sometimes

182See Westen, supra note 62, at 283 (arguing that the presumption of innocence and the principle of legality both “derive their content from the shared belief that unwittingly convicting the innocent is a far more frightful harm than unwittingly acquitting the guilty”).

183See Moore, supra note 16, at 156–158.

184See generally Michael T. Cahill, “Retributive Justice in the Real World” (Legal Studies Paper No. 77, Brooklyn Law School, 2007), available at http://ssrn.com/abstract=996140.

185See generally Robinson and Cahill, supra note 149, at ch. 4.

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the consequences of punishment for those other than the defendant may simply be too severe to countenance. Downward departures under the USSG for extraordinary family circumstances are based not on a lack of desert but on the significance of the consequences for others. As the Second Circuit noted in one case, “The rationale for a downward departure here is not that Johnson’s family circumstances decrease her culpability, but that we are reluctant to wreak extraordinary destruction on dependents who rely solely on the defendant for their upbringing.”186 For such reasons, a judge may depart downward from a sentencing range. Although an actor should not receive more punishment than he deserves, there may be times when our justice system will have to sacrifice giving the individual what she deserves for some other important end. Because the sentence reduction does not deal with the actor’s blameworthiness, but rather some other societal goal, we believe that these sorts of reductions are best administered by a judge, not a jury.

This chapter is simply a rough sketch of how one might try to implement our theory in the real world. Because our idealized theory must deal with real-world practicalities, there is little doubt that sometimes the criminal law will be forced to opt for second-best solutions. Errors and inadequacies in other parts of our criminal justice system are occasionally “fixed” through the distortions of criminal law doctrine. Nevertheless, when we make these allowances, we move away from punishing only those who deserve punishment and only as much as they deserve. To be clear about the nature and extent of these sacrifices, we should first think through how an idealized code would work and only then decide which sacrifices we are willing to make. We should also think clearly about whether matters are best resolved through changes to substantive criminal law doctrine as opposed to through criminal procedure, evidentiary rules, or even better oversight of law enforcement officials. Though we cannot solve these problems, we hope that this chapter has provided a sufficient framework to elucidate the structure and substance of the debate.

186 United States v. Johnson, 964 F.2d 124 (1992).