Ex ante Fairness in Criminal Law and Procedure

Abstract

In Furman v. Georgia, the United States Supreme Court announced that it would not tolerate a capital sentencing regime that imposed death sentences in a seriously arbitrary fashion. The question I ask in this paper is whether we should in fact object to arbitrariness in punishment. The answer I propose is that under plausibly adverse conditions, we might not object to arbitrary penal outcomes, because under those conditions a fair distribution of punishment would be one that equalizes chances across a class of similarly situated criminals. In particular, fairness may require no more than a rough equalization of ex ante chances under conditions of resource scarcity, an inability to rank claims reliably by comparative desert, and a pressing need for punishment to be imposed. I call this an ex ante theory of fairness. The central virtue of ex ante fairness is that it is capable of reconciling parsimony in punishment with equity in its distribution, even when claims about who deserves what are deeply contested. Adopting an ex ante standard of fairness means that a concern for fair treatment of the guilty need not blind us to the realities of the severe resource constraints faced by American criminal justice, and vice versa. After laying out the argument for ex ante fairness in general terms, I proceed to show how several prominent features of American criminal law and procedure—the Supreme Court’s capital jurisprudence, prosecutorial discretion, judicial sentencing discretion, and “strict” criminal liability—all exhibit an implicit commitment to an equalization of chances rather than of outcomes.