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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.'

Suggested Citation

  • Daniel P. Kessler & Anne Morrison Piehl, 1997. "The Role of Discretion in the Criminal Justice System," NBER Working Papers 6261, National Bureau of Economic Research, Inc.
  • Handle: RePEc:nbr:nberwo:6261 Note: LE
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    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 and Economics, University of Chicago Press, vol. 33(2), pages 439-462, October.
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    Cited by:

    1. Entorf, Horst, 2011. "Crime, Prosecutors, and the Certainty of Conviction," IZA Discussion Papers 5670, Institute for the Study of Labor (IZA).
    2. 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.
    3. Edward L. Glaeser & Andrei Shleifer, 2002. "Legal Origins," The Quarterly Journal of Economics, Oxford University Press, vol. 117(4), pages 1193-1229.
    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. David S. Abrams, 2012. "Estimating the Deterrent Effect of Incarceration Using Sentencing Enhancements," American Economic Journal: Applied Economics, American Economic Association, vol. 4(4), pages 32-56, October.
    6. Alexander, Cindy R & Arlen, Jennifer & Cohen, Mark A, 1999. "Regulating Corporate Criminal Sanctions: Federal Guidelines and the Sentencing of Public Firms," Journal of Law and Economics, University of Chicago Press, vol. 42(1), pages 393-422, April.
    7. 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;Instituto Superior de Economia e Gestao, vol. 8(3), pages 161-175, December.
    8. Libman Alexander & Schultz André & Graeber Thomas, 2016. "Tax Return as a Political Statement," Review of Law & Economics, De Gruyter, vol. 12(2), pages 377-445, July.
    9. 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 343-363, April.
    10. 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.
    11. 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.
    12. Bekkerman, Anton & Gilpin, Gregory A., 2014. "Can equitable punishment be mandated? Estimating impacts of sentencing guidelines on disciplinary disparities," International Review of Law and Economics, Elsevier, vol. 40(C), pages 51-61.
    13. Entorf, Horst, 2008. "Wirkung und Effizienz von Strafrecht: "Was geht?" - bei jungen Gewalttätern?," ZEW Discussion Papers 08-056, ZEW - Zentrum für Europäische Wirtschaftsforschung / Center for European Economic Research.
    14. 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.
    15. 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 - Economics Institute, Prague.
    16. Mustard, David B, 2001. "Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts," Journal of Law and Economics, University of Chicago Press, vol. 44(1), pages 285-314, April.
    17. Lundberg, Alexander, 2016. "Sentencing discretion and burdens of proof," International Review of Law and Economics, Elsevier, vol. 46(C), pages 34-42.

    More about this item

    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

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