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The Role of Discretion in the Criminal Justice System

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  • Daniel P. Kessler
  • Anne Morrison Piehl

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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Bibliographic Info

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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  1. Snyder, Edward A, 1990. "The Effect of Higher Criminal Penalties on Antitrust Enforcement," Journal of Law and Economics, University of Chicago Press, vol. 33(2), pages 439-62, October.
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Cited by:
  1. Bruno Deffains & Roberto Galbiati & Sebastien Rouillon, 2009. "Punishment should fit the crime: an assessment of the French reform of minimum mandatory penalties," Portuguese Economic Journal, Springer, vol. 8(3), pages 161-175, December.
  2. Edward L. Glaeser & Andrei Shleifer, 2002. "Legal Origins," The Quarterly Journal of Economics, MIT Press, vol. 117(4), pages 1193-1229, November.
  3. Fusako Tsuchimoto & Libor Dusek, 2009. "Responses to More Severe Punishment in the Courtroom: Evidence from Truth-in-Sentencing Laws," CERGE-EI Working Papers wp403, The Center for Economic Research and Graduate Education - Economic Institute, Prague.
  4. Kristin F. Butcher & Anne Morrison Piehl, 2000. "The Role of Deportation in the Incarceration of Immigrants," NBER Chapters, in: Issues in the Economics of Immigration, pages 351-386 National Bureau of Economic Research, Inc.
  5. 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.
  6. Bjerk, David, 2005. "Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion under Mandatory Minimum Sentencing," Journal of Law and Economics, University of Chicago Press, vol. 48(2), pages 591-625, October.
  7. Edward L. Glaeser & Anne Morrison Peihl, 1998. "What Do Prosecutors Maximize? An Analysis of Drug Offenders and Concurrent Jurisdiction," JCPR Working Papers 29, Northwestern University/University of Chicago Joint Center for Poverty Research.
  8. Kessler, Daniel P & Levitt, Steven D, 1999. "Using Sentence Enhancements to Distinguish between Deterrence and Incapacitation," Journal of Law and Economics, University of Chicago Press, vol. 42(1), pages 343-63, April.
  9. Shawn D. Bushway & Emily G. Owens & Anne Morrison Piehl, 2011. "Sentencing Guidelines and Judicial Discretion: Quasi-experimental Evidence from Human Calculation Errors," NBER Working Papers 16961, National Bureau of Economic Research, Inc.

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