Punishing on a curve

Adi Leibovitch*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

11 Scopus citations


Does the punishment of one defendant depend on how she fares in comparison to the other defendants on the judge’s docket? This Article demonstrates that the troubling answer is yes. Judges sentence a given offense more harshly when their caseloads contain relatively milder offenses and more leniently when their caseloads contain more serious crimes. I call this phenomenon “punishing on a curve.” Consequently, this Article shows how such relative sentencing patterns put into question the prevailing practice of establishing specialized courts and courts of limited jurisdiction. Because judges punish on a curve, a court’s jurisdictional scope systematically shapes sentencing outcomes. Courts of limited jurisdiction usually specialize in relatively less serious crimes—such as misdemeanors, drug offenses, or juvenile cases. They treat the mild offenses on their docket more harshly than generalist courts that also see severe crimes. This leads to the disturbing effect of increasing punitive outcomes vis-à-vis these offenses, wholly contradictory to the missions of these courts. Such sentencing patterns undermine notions of justice and equitable treatment. They also undermine retributive principles and marginal deterrence across crimes of increasing severity. In light of the profound normative and practical implications, this Article proposes a remedy to standardize sentences through “curving discretion.” In addition to consulting the sentencing range recommended by the sentencing guidelines for a particular offense, a judge should see the distribution of sentences for the same offense across different courts. This Article illustrates the feasibility of this proposal empirically using sentencing data from neighboring judicial districts in Pennsylvania. It also explains how this proposal fits within the Supreme Court’s jurisprudence following United States v. Booker, which rendered sentencing guidelines advisory, and its potential advantage to improve appellate review.

Original languageAmerican English
Pages (from-to)1205-1280
Number of pages76
JournalNorthwestern University Law Review
Issue number5
StatePublished - 2017

Bibliographical note

Publisher Copyright:
© 2017 by Adi Leibovitch.


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