The Economic Case for Probablity-Based Sentencing

Evidence in criminal trials determines whether the defendant is found guilty, but is usually not one of the factors formally considered during sentencing. A number of legal scholars have advocated the use of sentences that reflect the strength of evidence. This paper proposes an economic model that unifies the arguments put forward in this literature and addresses three of the remaining objections to the use of evidence-based sentencing: i) political legitimacy (the impact on the coercive power of the state), ii) robustness to details of the environment, and iii) incentives to acquire evidence. ∗We thank Robert Burns, Andy Daughety, Eddie Dekel, Louis Kaplow, Fuhito Kojima, Adi Leibovitz, Aki Matsui, Paul Milgrom, Jennifer Reiganum, Ariel Rubinstein, Kathy Spier, Jean Tirole, and Leeat Yariv for their comments. The paper benefited from the reactions of seminar participants at UC Berkeley, Seoul National University, the NBER, the World Congress of the Econometric Society, the Harvard/MIT Theory workshop, Caltech’s NDAM conference, Duke, Penn State, Johns Hopkins, the Pennsylvania Economic Theory Conference, Bocconi University, Oxford University, Kyoto University, Tokyo University, the Toulouse School of Economics, the Harris School of Public Policy, and the Summer School of the Econometric Society 2019. David Rodina provided excellent research assistance. Previous versions of the paper were circulated under the name “Multiverdict Systems.” Strulovici acknowledges financial support from an NSF CAREER Award (Grant No. 1151410) and a fellowship form the Alfred P. Sloan Foundation. Siegel: Department of Economics, The Pennsylvania State University, University Park, PA 16802, rus41@psu.edu. Strulovici: Department of Economics, Northwestern University, Evanston, IL 60208, b-strulovici@northwestern.edu.