The criminal law's formal criteria for assessing punishment are typically contained in criminal codes, the rules of which fix an offender's liability and the grade of the offense. Those rules classically look to an offender's blameworthiness, taking account of both the seriousness of the harm or the evil of the offense and an offender's culpability and mental capacity. Courts generally examine these desert-based factors as they exist at the time of the offense. To some extent, modern crime-control theory sometimes prompts code drafters to look at circumstances beyond the offense itself, such as prior criminal record, on the grounds that these factors relate to the crime- control goals of deterrence and incapacitation.'
A look at how the punishment decisionmaking process actually works in practice, however, suggests that courts and other decisionmakers frequently go beyond the factors that the criminal law formally recognizes. These extralegal punishment factors ("XPFs") are the subject of this Article.2 XPFs include matters as diverse as an offender's apology, remorse, history of good or bad deeds, public acknowledgment of guilt, special talents, old age, extralegal suffering from the offense, forgiveness or outrage by the victim, and special hardship of the punishment for the offender or his family. These XPFs can make a difference at any point in the criminal justice process at which decisionmakers exercise discretion, such as when prosecutors decide which charge to press, when judges decide which sentence to impose, when parole boards decide when to release a prisoner, and when executive officials decide whether to grant clemency. They also make a difference in less visible exercises of discretion, such as in decisions by police officers and trial jurors.
Paul H. Robinson, Sean E. Jackowitz, and Daniel M. Bartels,
Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment,
65 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol65/iss3/2