In most real situations, we must make decisions based on partial information. We should neither allow this uncertainty to prevent action or pretend to perfect certainty in taking action. Yet in one area with a great impact on an individual’s freedom and well-being we do just that. Judges and juries are required to return an all-or-nothing verdict of guilt. They may not use their experience, intelligence, and judgment to render a level of confidence rather than a mere binary choice.
I propose adopting a sentencing mechanism based on a probabilistic assessment of guilt or innocence. This allows jurists to better express their certainty or lack thereof than does our traditional all-or-nothing verdict. The natural place to reflect such an imputed degree of guilt is in the sentencing phase. I discuss the implications of such a system as well as certain issues with implementation.