Longitudinal Guilt: Repeat Offenders, Plea Bargaining, and the Variable Standard of Proof

This Article introduces a new concept—“longitudinal guilt”—which invites readers to reconsider basic presuppositions about the way our criminal justice system determines guilt in criminal cases. In short, the idea is that a variety of features of criminal procedure, most importantly, plea bargaining, conspire to change the primary “truthfinding mission” of criminal law from one of adjudicating individual historical cases to one of identifying dangerous “offenders.” This change of mission is visible in the lower proof standards we apply to repeat criminal offenders. The first section of this Article explains how plea bargaining and graduated sentencing systems based on criminal history effectively combine to lower the standard of proof for repeat criminals. The second section describes several additional procedural and evidentiary rules that further effectively reduce the standard of proof for recidivists.

The third section argues that the net effect is a criminal justice system that is primarily focused on the identification of a class of “dangerous offenders” based upon their repeated interactions with the system over time rather than the accurate resolution of specific allegations of wrongdoing in individual cases, as is conventionally supposed. In a phrase, we have moved toward a system that constructs guilt “longitudinally.” This Article concludes with a few brief thoughts on the merits and demerits of longitudinal guilt.