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The Case for Discriminatory Sentencing: Why Identical Crimes May Deserve Different Sanctions


  • Alon Harel
  • Eyal Winter


The traditional premise of criminal law is that criminals who are convicted of similar crimes under similar circumstances ought to be subject to identical sentences. This article provides an efficiency-based rationale for discriminatory sentencing, i.e., establishes circumstances under which identical crimes ought to be subject to differential sentencing. We also establish the relevance of this finding to the practices of sentencing and, in particular, to the Sentencing Guidelines. Most significantly, we establish that the model can explain why celebrities, leaders, or recidivists ought to be subject to harsher sanctions than others. Discriminatory sentencing is optimal when criminals confer positive externalities on each other. If a criminal A who imposes (non-reciprocal) large positive externalities on criminal B is punished sufficiently harshly, B would expect A not to commit the crime and, consequently, he would expect not to benefit from the positive externalities conferred on him by A. Given that B's expected benefits are lower, the sanctions sufficient to deter B are also lower than the ones imposed on A. The result can be easily extended to the case of reciprocal externalities. Assume that a criminal A imposes positive externalities on B and B imposes identical positive externalities on A. If A is subject to a sufficiently harsh sanction and B knows this, B would expect A not to perform the crime and therefore would expect not to benefit from the positive externalities otherwise conferred on B. Consequently, a more lenient sanction than the sanction imposed on A would be sufficient to deter B.

Suggested Citation

  • Alon Harel & Eyal Winter, 2011. "The Case for Discriminatory Sentencing: Why Identical Crimes May Deserve Different Sanctions," Discussion Paper Series dp569, The Federmann Center for the Study of Rationality, the Hebrew University, Jerusalem.
  • Handle: RePEc:huj:dispap:dp569

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    References listed on IDEAS

    1. Sergiu Hart, 2004. "A comparison of non-transferable utility values," Theory and Decision, Springer, vol. 56(2_2), pages 35-46, February.
    2. Sergiu Hart & Andreu Mas-Colell, 2010. "Bargaining and Cooperation in Strategic Form Games," Journal of the European Economic Association, MIT Press, vol. 8(1), pages 7-33, March.
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    4. Sergiu Hart, 2013. "Adaptive Heuristics," World Scientific Book Chapters,in: Simple Adaptive Strategies From Regret-Matching to Uncoupled Dynamics, chapter 11, pages 253-287 World Scientific Publishing Co. Pte. Ltd..
    5. Dhillon, Amrita & Mertens, Jean Francois, 1996. "Perfect Correlated Equilibria," Journal of Economic Theory, Elsevier, vol. 68(2), pages 279-302, February.
    6. Hart, Sergiu & Mas-Colell, Andreu, 1996. "Bargaining and Value," Econometrica, Econometric Society, vol. 64(2), pages 357-380, March.
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    JEL classification:

    • K13 - Law and Economics - - Basic Areas of Law - - - Tort Law and Product Liability; Forensic Economics

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