What do we punish for, when sentencing someone for a given crime? The answer may seem obvious both from the viewpoint of the general public, and theory of criminal law: the penal sanction should be tailored to the gravity of the criminal deed, but this rule seems to be in danger in a number of cases.

In a recent study, Jordan Wylie and Ana Gantman (2023) delineated a category of ‘phantom rules’, i.e. legal rules that are frequently broken but (a) very often not enforced, and (b) not perceived as grave transgressions, as opposed to most prototypical legal and non-codified social norms.

It turned out that in cases in which a phantom rule violator committed a reprehensible but legal deed as well, people were far more punitive towards that kind of perpetrator, effectively treating the enforcement of a phantom rule as means to an end in punishing blameworthy individuals.

This result is of particular importance for the problem of the object of punishment in criminal prosecution. As noted by Gabriel Mendlow (2018), current criminal systems lean towards the Divine Justice model (criminal code containing only a general provision of prohibiting bad behavior along with the discretionary approach to prosecution and sentencing) rather than the Code of Babel (containing every potential offense coupled with the penalty for it, without any discretion). This situation jeopardizes the rights of the defendant, as criminal codes often criminalize misconduct that is not going to be prosecuted in most cases, allowing to punish the defendant for some behavior via charging them with some other type of offense. 

In the talk, we will discuss preliminary results of two experimental studies, tackling two specific problems of this kind, namely proxy criminalization, and pretextual prosecution.