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The Role of Discretion in the Criminal Justice System

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Author Info
Daniel P. Kessler
Anne Morrison Piehl

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Abstract

Although a substantial body of research suggests that the discretion of discretion of actors in the criminal justice system is important, there is disagreement in the existing empirical literature over its role. Studies in this literature generally hypothesize that discretion plays one of two roles: either it serves as the means by which changing broad social norms against crime causes changes in sentencing patterns, or it serves as the means by which internal social norms of the criminal justice system prevent the implementation of formal changes in laws. We reject both of these hypotheses using data on the sentencing of California prisoners before and after Proposition 8, which provided for sentence enhancements for those convicted of certain serious' crimes with qualifying' criminal histories. We find that an increase in the statutory sentence for a given crime can increase sentence length for those who are charged with the crime, and also for those who are charged with factually 'similar' crimes, where a 'similar' crime is defined as one that has legal elements in common with the given crime. These spillovers are consistent with neither broad social norms nor internal social norms, so we conclude that discretion takes a less-well studied form, which we call 'prosecutorial maximization.'

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Paper provided by National Bureau of Economic Research, Inc in its series NBER Working Papers with number 6261.

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Date of creation: Nov 1997
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Handle: RePEc:nbr:nberwo:6261

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Find related papers by JEL classification:
K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
D73 - Microeconomics - - Analysis of Collective Decision-Making - - - Bureaucracy; Administrative Processes in Public Organizations; Corruption

References listed on IDEAS
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  1. Snyder, Edward A, 1990. "The Effect of Higher Criminal Penalties on Antitrust Enforcement," Journal of Law & Economics, University of Chicago Press, vol. 33(2), pages 439-62, October.
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  1. Edward L. Glaeser & Andrei Shleifer, 2001. "Legal Origins," Harvard Institute of Economic Research Working Papers 1920, Harvard - Institute of Economic Research. [Downloadable!]
    Other versions:
  2. Horst Entorf & Hannes Spengler, 2008. "Is Being 'Soft on Crime' the Solution to Rising Crime Rates?: Evidence from Germany," Discussion Papers of DIW Berlin 837, DIW Berlin, German Institute for Economic Research. [Downloadable!]
    Other versions:
  3. Kristin F. Butcher & Anne Morrison Piehl, 1999. "The Role of Deportation in the Incarceration of Immigrants," NBER Working Papers 6974, National Bureau of Economic Research, Inc. [Downloadable!] (restricted)
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  4. Daniel Kessler & Steven D. Levitt, 1998. "Using Sentence Enhancements to Distinguish between Deterrence and Incapacitation," NBER Working Papers 6484, National Bureau of Economic Research, Inc. [Downloadable!] (restricted)
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  5. David Bjerk, 2004. "Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion Under Mandatory Minimum Sentencing," Department of Economics Working Papers 2004-12, McMaster University. [Downloadable!]
    Other versions:
  6. Edward L. Glaeser & Daniel P. Kessler & Anne Morrison Piehl, 1998. "What Do Prosecutors Maximize? An Analysis of Drug Offenders and Concurrent Jurisdiction," NBER Working Papers 6602, National Bureau of Economic Research, Inc. [Downloadable!] (restricted)
    Other versions:
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