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March 8, 2011

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

The title of this post is the title of this interesting-looking new paper by Professors Alon Harel and Eyal Winter taking a law-and-econ perspective on sentencing disparity. Here is the abstract:

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 than 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 herefore 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.

I suspect that Lindsay Lohan might be distinctly troubled by a paper which explains "why celebrities, leaders, or recidivists ought to be subject to harsher sanctions than others." But especially since I do not fit into any of those choice categories, I am excited to read a reasoned argument in favor of sentencing disparity.

March 8, 2011 at 05:32 PM | Permalink

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Comments

You have to watch them like a hawk.

The trick is given away in the very first sentence, which reads, "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."

Wrongo. The traditional premise of criminal law, and certainly of the Sentencing Guidelines, is that criminals who are convicted of similar crimes under similar circumstances ought to be subject to SIMILAR sentences.

This is, of course, the reason the Guidelines prescribe ranges of numbers rather than a specific number.

I'll give the authors credit for a nice try, I guess.

Posted by: Bill Otis | Mar 8, 2011 6:07:58 PM

I too was struck by the use of 'similar' and identical. The only valid thing I can come up with for not using 'similar' a third time is that the authors felt it would be too repetitive. That, however, still does not explain such a jarring word choice.

Posted by: Soronel Haetir | Mar 8, 2011 6:25:02 PM

Discriminatory sentencing is optimal when 'criminals confer positive externalities on each other,'

I couldn't bring myself to go any further into this ivory tower clusterf....

Posted by: mjs | Mar 8, 2011 8:03:43 PM

Those watching like a hawk will perhaps note that the authors put "Identical Crimes" in the title of their article.

Posted by: Michael Drake | Mar 8, 2011 8:54:39 PM

Those who don't need really stong glasses will perhaps note that title is not text.

Posted by: Bill Otis | Mar 8, 2011 9:51:35 PM

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