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Compensating acquitted pre-trial detainees

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  • Doménech, Gabriel
  • Puchades, Miguel

Abstract

Western legal systems are far from having provided the same solution to the problem of whether acquitted pre-trial detainees should be compensated for the harm suffered as a result of detention on remand. Various arguments have been formulated in order to justify or criticize this compensation, but the possible incentive effects of this compensation on criminal behavior has not yet been considered. This paper analyzes these effects, focusing on the case where detention was lawfully and diligently carried out by State agents, and not having been caused by negligence on the part of the detainee. The paper shows that such compensation can either deter crime or encourage it, depending inter alia on the standard of evidence used to decide whether to compensate or not. Finally, the paper analyzes which standards of evidence maximize both deterrence and social welfare, and discusses some possible extensions.

Suggested Citation

  • Doménech, Gabriel & Puchades, Miguel, 2015. "Compensating acquitted pre-trial detainees," International Review of Law and Economics, Elsevier, vol. 43(C), pages 167-177.
    • Handle: RePEc:eee:irlaec:v:43:y:2015:i:c:p:167-177
    DOI: 10.1016/j.irle.2014.04.002
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    References listed on IDEAS

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    1. Gary S. Becker, 1974. "Crime and Punishment: An Economic Approach," NBER Chapters, in: Essays in the Economics of Crime and Punishment, pages 1-54, National Bureau of Economic Research, Inc.
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    4. Vincy Fon & Hans-Bernd Schäfer, 2007. "State Liability for Wrongful Conviction: Incentive Effects on Crime Levels," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 163(2), pages 269-284, June.
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    Cited by:

    1. Libor Dušek, 2016. "Selecting among Acquitted Defendants: Procedural Choice versus Selective Compensation," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 172(1), pages 134-137.
    2. Doménech-Pascual, Gabriel & Jiménez, Juan Luis, 2024. "Changes in damages when liability rules change: an empirical study on compensation for the time spent in pretrial detention," International Review of Law and Economics, Elsevier, vol. 78(C).

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    More about this item

    Keywords

    Tort law; State liability; Criminal procedure; Pre-trial detention; Judicial errors; Optimal standard of evidence;
    All these keywords.

    JEL classification:

    • K13 - Law and Economics - - Basic Areas of Law - - - Tort Law and Product Liability; Forensic Economics
    • K14 - Law and Economics - - Basic Areas of Law - - - Criminal Law
    • K42 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Illegal Behavior and the Enforcement of Law

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