Whom Should We Punish, and How? Rational Incentives and Criminal Justice Reform

This Article sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and when should we use them? Should some conduct be left to a form of market punishment through private lawsuits?

Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The framework of this Article is firmly grounded in rational deterrence policy, and yet points toward reforms that would soften or reduce the scope of criminal punishment.