Guiding Judicial Discretion: Extralegal Punishment Factors

Document Type

Book Chapter

Publication Date



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. A look at how the punishment decision-making process actually works in practice, however, suggests that courts and other decision makers often go beyond the factors that the criminal law formally recognizes. This chapter focuses on these extralegal punishment factors (XPFs). 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, as well as forgiveness or outrage by the victim. The chapter begins by sketching the different XPFs that are being given effect and illustrates decision makers' reliance on them. It then reports the results of an empirical study, showing which factors have intuitive support among lay persons and to what extent. Finally, it examines the implications of these findings for criminal justice reform.


criminal law, punishment, criminal liability, criminal justice reform, lay judgment, lay intuitions

Publication Title

Intuitions of Justice and the Utility of Desert