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Crime and (with a lag) Punishment: Equitable Sentencing and the Implications of Discounting, 44 AM. CRIM. L. REV. 115 (2007)


Because criminals discount the future, the deterrence and retributive value of a given criminal sanction steadily decreases as the lag between crime and punishment lengthens. Discounting thus implies that the same nominal sentence will have disparate discounted values when imposed after different lags. Since lags between crime and punishment are both ubiquitous and widely-varying, pre-conviction delays constitute an important (and hitherto overlooked) source of sentencing disparities. Because the mitigation of sentencing disparities is an important aim of criminal law, this essay proposes maintaining constant discounted sentencing terms by adjusting individual sanctions to account for the lag between crime and punishment. These adjustments may be large since the lag between crime and punishment is often lengthy and criminals may discount the future rapidly. Applying similar reasoning, the essay also proposes that convicted pretrial detainees should receive "interest" in addition to credit for time served since their sentences begin earlier and have greater discounted values.

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