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The Role of Discretion in the Criminal Justice System

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  • Kessler, Daniel P
  • Piehl, Anne Morrison

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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Suggested Citation

  • Kessler, Daniel P & Piehl, Anne Morrison, 1998. "The Role of Discretion in the Criminal Justice System," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 14(2), pages 256-276, October.
    • Handle: RePEc:oup:jleorg:v:14:y:1998:i:2:p:256-76
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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. Horst Entorf & Hannes Spengler, 2015. "Crime, prosecutors, and the certainty of conviction," European Journal of Law and Economics, Springer, vol. 39(1), pages 167-201, February.
    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. 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.
    4. Dippel, Christian & Poyker, Michael, 2021. "Rules versus norms: How formal and informal institutions shape judicial sentencing cycles," Journal of Comparative Economics, Elsevier, vol. 49(3), pages 645-659.
    5. 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.
    6. Bryan C. McCannon & Joylynn Pruitt, 2018. "Taking on the boss: Informative contests in prosecutor elections," Journal of Public Economic Theory, Association for Public Economic Theory, vol. 20(5), pages 657-671, October.
    7. Shawn D. Bushway & Emily G. Owens & Anne Morrison Piehl, 2012. "Sentencing Guidelines and Judicial Discretion: Quasi‐Experimental Evidence from Human Calculation Errors," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 9(2), pages 291-319, June.
    8. 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.
    9. 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.
    10. Christian Dippel & Michael Poyker, 2019. "How Common are Electoral Cycles in Criminal Sentencing?," NBER Working Papers 25716, National Bureau of Economic Research, Inc.
    11. 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.
    12. Lundberg, Alexander, 2016. "Sentencing discretion and burdens of proof," International Review of Law and Economics, Elsevier, vol. 46(C), pages 34-42.
    13. Edward L. Glaeser & Andrei Shleifer, 2002. "Legal Origins," The Quarterly Journal of Economics, President and Fellows of Harvard College, vol. 117(4), pages 1193-1229.
    14. Christian Dippel & Michael Poyker, 2023. "Do Private Prisons Affect Criminal Sentencing?," Journal of Law and Economics, University of Chicago Press, vol. 66(3), pages 511-534.
    15. Emily G. Owens, 2011. "Truthiness in Punishment: The Far Reach of Truth‐in‐Sentencing Laws in State Courts," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 8(s1), pages 239-261, December.
    16. 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.
    17. 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.
    18. 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.
    19. Radha Iyengar, 2010. "I'd Rather be Hanged for a Sheep than a Lamb The Unintended Consequences of 'Three-Strikes' Laws," CEP Discussion Papers dp1017, Centre for Economic Performance, LSE.
    20. 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.
    21. 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.
    22. Entorf, Horst, 2008. "Wirkung und Effizienz von Strafrecht: "Was geht?" - bei jungen Gewalttätern?," ZEW Discussion Papers 08-056, ZEW - Leibniz Centre for European Economic Research.
    23. 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.

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    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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