The Regulatory Offence Revolution in Criminal Justice (Part 2/2)
This is the second part of a two-part article series that explores the regulatory offence revolution in criminal justice.
Part 1 explored the expansive role of regulatory offences.
Part 2 discusses the choice architecture of criminal justice.
The term “choice architecture” refers to the background conditions for decision-making. This second article describes how crimes and regulatory offences incorporate different forms of choice architecture, and elucidates why this distinction matters.
Here is the article’s abstract:
Courts, scholars, and lawyers tend to overlook one of the most salient features that differentiate crimes and regulatory offences: choice architecture. The concept of “choice architecture” refers to how the presentation of options shapes decision-making.
This article argues that crimes and regulatory offences employ different forms of choice architecture in the criminal justice process. It advances three core arguments.
First, in the charging and plea phase, regulatory prosecutions nudge defendants to plead guilty by default, while criminal prosecutions automatically enrol defendants into non-guilty pleas.
Second, when assessing culpability (or moral fault), regulatory prosecutions incorporate inculpatory default rules that presume guilt and foster efficiency. In contrast, criminal prosecutions incorporate exculpatory default rules that presume innocence and aim to prevent wrongful convictions.
Third, in the context of sentencing, impecunious defendants who are charged with a regulatory offence must often opt in to receive a proportionate sanction. Outside of mandatory minimum sentencing contexts, defendants who are charged with a crime enrol into a sentencing scheme that considers proportionality constraints by default.
Ultimately, this article deepens our understanding of the different choice architecture that governs crimes and regulatory offences, and lays the foundation for future scholarship that explores the criminal justice system’s choice architecture more generally.
All views expressed are my own.
They do not represent — and are not endorsed by — any academic institution or research center.
