Sentencing Co-Offenders

Abstract

Tort law and criminal law are the two main vehicles utilized by the state to deter wrongful behavior. Despite the many similarities between the two legal fields, they differ in their treatment of collaborations. While tort law divides liability among joint-tortfeasors, criminal law abides by a no-division rule that imposes on each co-offender the full brunt of the sanction. Thus, each of two offenders who jointly steal $1,000, will be subject to the full corresponding penalty (rather than the divided penalty for stealing $500). This Article demonstrates that in property and financial crimes, the no-division regime of criminal law harms both offenders and victims. Specifically, it creates three troubling distortions that have been overlooked by theorists and judges. First, the no-division rule violates the frugality principle, which mandates that sanctions be kept to the minimum level necessary to prevent the offense. Second, it disadvantages vulnerable victims, while favoring the well-to-do. Third, it prompts all potential victims to engage in excessive procurement of private precautions, to the detriment of society at large. The Article proposes two possible solutions to these problems. One option is to substitute the no-division rule with a division regime similar to the one endorsed by tort law. Alternatively, if lawmakers opt to retain the no-division rule, they can, and should, allocate greater public resources to the protection of the vulnerable.