Equality in Criminal Law: The Two Divergent Western Roads

48 Pages Posted: 26 Feb 2009

Date Written: January 21, 2009

Abstract

Every western society embraces the ideal of equality before the criminal law. However, as this Article observes, that ideal is understood differently in the United States and Continental Europe. American law generally demands that all citizens face an equal threat of punishment, while continental European law generally demands that all citizens face an equal threat of investigation and prosecution. This contrast raises a sharp normative challenge: Is it better to think of equality before the criminal law as pre-conviction equality or post-conviction equality? The Article makes the case that pre-conviction of the Continental kind is normatively superior. It then asks why American law has opted for what seems a normatively inferior solution, identifying a variety of factors in American culture and the common law tradition that have encouraged the belief that true equality lies in the equal threat of punishment rather than in the equal threat of prosecution.

Keywords: equality, criminal law, comparative law, european law, american law, punishment

JEL Classification: K14

Suggested Citation

Whitman, James Q., Equality in Criminal Law: The Two Divergent Western Roads (January 21, 2009). The Journal of Legal Analysis, Vol. 1, No. 1, p. 119-165, 2009, Available at SSRN: https://ssrn.com/abstract=1349421

James Q. Whitman (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-8932 (Phone)
203-432-4177 (Fax)

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