Adam J. Kolber (Brooklyn Law School) has posted Wonderland Sentencing: Therapeutic Perspectives on Pretrial Provisional Sentences (Virginia Law Review (forthcoming, 2026)) on SSRN. Here is the abstract:
In Alice’s Adventures in Wonderland, the Knave of Hearts is accused of stealing tarts. The Queen of Hearts insists that they should “sentence [the Knave] first” and hear the verdict afterwards. Alice derides “[t]he idea of having the sentence first!” because, of course, nothing would be more absurd. In this symposium contribution, I defend that absurd idea, at least provisionally.
While we certainly should not punish someone prior to conviction, we should carefully consider the benefits of “wonderland sentencing,” in which those accused of crimes are given provisional sentences prior to the decision to proceed to trial. Doing so enables defendants to make better informed, fairer decisions about whether and under what circumstances to plead guilty. The proposal supports goals of therapeutic jurisprudence by: (1) reducing prosecutorial leverage that many legal scholars consider both excessive and a cause of disproportional sentencing; (2) allowing defendants to be and feel heard by an impartial judge; and (3) providing defendants better information about their future sentencing liability, not only as it affects plea decisions, but also as it affects the very stressful period before their cases are resolved.
We give defendants very limited information prospectively about punishments for various crimes. Wonderland sentences would help correct our general failure to provide advance notice of the consequences of criminal conduct. While wonderland sentencing is just one of many therapeutic policy changes we could implement, given that approximately ninety-five percent of non-dismissed cases are resolved by plea bargains, wonderland sentencing has the potential to do a lot of good for a lot of people.