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January 18, 2009

Should the value of property stolen drive sentencing outcomes?

A new piece I noticed on SSRN indirectly speaks to an issue that arises in the toughest fraud and white-collar cases.  The piece, available here, is titled "Community Perceptions of Theft Seriousness: A Challenge to Model Penal Code and English Theft Act Consolidation." Here is the abstract:

In the middle of the 20th century, criminal law reformers helped pass laws that consolidated previously distinct common law offenses such as larceny, embezzlement, false pretenses, extortion, blackmail, and receiving stolen property into a unified offense of theft, imposing uniform punishments for a diversity of methods of stealing and a diversity of types of property that could be stolen.  The result was a "consolidated" scheme of theft, with a single broad definition of property (typically, "anything of value") and a single scheme of grading (based, roughly, on the value of the thing stolen).

In this study, participants were given two sets of scenarios — one involving variations in the means by which a theft was committed, the other involving variations in the type of property stolen — and asked to rate these thefts in terms of blameworthiness and punishment deserved.  They drew sharp distinctions across both means of theft and type of property, not adopting a consolidated view.  Under the principle of fair labeling — the idea that criminal law offenses should be divided and labeled so as to represent widely felt views about the nature and magnitude of law breaking — such data provide the basis for a significant challenge to modern theft law.

January 18, 2009 at 03:13 PM | Permalink


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This is an important piece of research. I hope it gets the attention it deserves.

I would just like to make two points. First, judges are also human beings. To the extent that there is any room for the exercise of discretion, judges make the same sentencing differentiations as others do. It seems to me that sentencing systems should take this into account, and not oversimplify.

Second, our intuitions are not just random happenstance. For the most part, they work pretty well. At least that is what scientists tell us. It would be interesting to have an interpretation of this data from the standpoint of evolutionary psychology. I believe this study tells us the fine-grained sentences probably work better.

Posted by: Tom McGee | Jan 19, 2009 1:12:15 PM

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