Thursday, April 19, 2018
Adam Kolber has this interesting post at PrawfsBlawg. In part:
The law draws hard-to-justify lines around vague words. Those lines can lead to dramatically different consequences. In Smoothing Vague Laws, I argued that problems caused by legal vagueness can be eased in many instances by "smoothing" the law. If, for example, you have merely "prepared" to commit a crime, you have no criminal liability. When you cross the line from preparation to "attempt," however, you can have substantial liability--at least the mandatory minimum sentence for the attempt. If the attempt has no mandatory minimum, it's possible that a judge will sentence in a smooth fashion. But I suspect that judges don't think about sentencing in a smooth way. Though there should presumably be cases where a person gets a modest sentence for attempted murder or attempted rape because the crime falls right around the border between preparation and attempt, I suspect such sentences are rare because judges focus on the bumpy names of offenses rather than their often smooth underlying facts.
Doron Teichman takes issue with this discussion in his interesting recent article.