Taking the Ratio of Differences Seriously: The Multiple Offender and the Standard of Proof, or, Different Strokes for Serial Folks

Abstract

This paper analyzes the case for utilizing different standards of proof for trying cases involving, respectively, serial offenders and first-time offenders. It argues that, if we expect the standard in a trial to reflect the costs and benefits of the four possible outcomes at trial, then the empirical data leave no room for doubt that the profiles of all four outcomes -- true and false convictions and true and false acquittals -- are strikingly different for serial offenders than for those without prior convictions. Moreover, it is shown how the phenomenon of widespread and prolonged recidivism poses insuperable problems for those who subscribe to a retributionist or just deserts theory of crime and punishment.