Criminal code design and sentencing: a response to Joshua Kleinfeld's Theory of Criminal Victimization

In the May 2013 edition of the Stanford Law Review, Joshua Kleinfeld, then an Assistant Professor at Northwestern University Law School, argued that the observed practice that criminal sentences reflected the characteristics of the victim had been overlooked. Kleinfeld claimed that criminal law scholars had offered no theory to explain such sentencing variations, and that therefore the pattern ‘had been missed or misunderstood empirically’. Kleinfield claimed that ‘the dominant view’ of criminal law scholars is that ‘victim characteristics do not figure in the calculus of blame’, heavily relying on the work of Moore in support for his assertion. This response contends that Kleinfeld has set up a straw hypothesis or to use Andreski’s apt phrase ‘an equivalent of sorcery’. Far from being missed, sentencing variations are embedded in judicial sentencing of convicted criminals. Within the ambit of a specific crime, the characteristics of the defendant and the victim have always been factors in the balancing exercise of determining the final sentence. Were it otherwise, there would be no variation in the ‘tariff’ handed down. Absent these variations and there would be de facto mandatory standardized sentencing for every crime in the criminal codes across America. Circumstances of aggravation and mitigation are part and parcel of sentencing guidelines regularly included in criminal legislation by the legislature as a reflection of community expectations. The essential problem with Kleinfeld’s theory of criminal victimization is that it confuses two tasks: namely, (a) the prosecution’s task of proving the elements of the offence, and (b) the sentencing task. A more fruitful line of inquiry and a more complex question would be to ask whether the nature of the crime impacts on the jury’s decision to return a guilty verdict, rather than focus on the severity of the sentence