Alex F. Sarch (University of Surrey School of Law) has published "Don't Be Cruel: Building the Case for Luck in the Law" on SSRN. Here is the abstract:
The problem of legal luck asks why defendants who cause harm should receive more punishment than analogous actors who, simply due to luck, don’t cause harm. Here I consider one type of justification that assumes luckily harmless actors are just as culpable as their harmful counterparts. Specifically, I focus on the legislature’s reasons to ratchet down punishments for harmless wrongdoers beneath what is permitted on culpability grounds. After critiquing several such arguments (including one from mercy), I develop a more promising version based on the idea that the legislature has a duty not to be cruel. The legislature would violate this duty if it always passed laws imposing the maximum punishments permitted on culpability grounds. Withholding some punishment otherwise due harmless wrongdoers thanks to their culpability is a particularly appropriate way for the legislature to eschew cruelty. This provides a promising new justification for punishing luckily harmless misconduct less harshly.
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