A criminal defendant enjoys an array of legal rights. These include the right not to be punished for an offense unless charged, tried, and proved guilty beyond a reasonable doubt; the right not to be punished disproportionately; and the right not to be punished for the same offense more than once. I contend that the design of our criminal legal system imperils these rights in ways few observers appreciate. Because criminal codes describe misconduct imprecisely and prohibit more misconduct than any legislature actually aspires to punish, prosecutors decide which violations of the code merit punishment, and judges decide how much punishment specific violations warrant. In making these decisions, prosecutors and judges rely on evidence beside that which is necessary to sustain a conviction, including evidence of an offender’s extraneous transgressions. This practice calls into question whether offenders are being punished for the offenses of which they’re formally convicted or instead for the extraneous transgressions that inform the exercise of official discretion. As I argue, theory and common sense alike suggest that the offense an offender is punished for is determined less by the formal features of the criminal process than by that process’s social meaning, which itself is determined at least in part by the motivations of the participating legal actors. Because we lack a sound basis to resolve these matters, we may not know how often our legal system dishonors the rights it proclaims sacrosanct.
Gabriel Mendlow. "Divine Justice and the Library of Babel: Or, Was Al Capone Really Punished for Tax Evasion?" Ohio St. J. Crim. L. 16, no. 1 (2018): 181-205.