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The Role of Discretion in the Criminal Justice System

37 Pages Posted: 11 Jun 2000 Last revised: 7 Oct 2010

Daniel P. Kessler

Stanford Graduate School of Business; National Bureau of Economic Research (NBER)

Anne Morrison Piehl

Rutgers University - Department of Economics; National Bureau of Economic Research (NBER)

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Date Written: November 1997

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.'

Suggested Citation

Kessler, Daniel P. and Piehl, Anne Morrison, The Role of Discretion in the Criminal Justice System (November 1997). NBER Working Paper No. w6261. Available at SSRN: https://ssrn.com/abstract=226018

Daniel Philip Kessler (Contact Author)

Stanford Graduate School of Business ( email )

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Anne Morrison Piehl

Rutgers University - Department of Economics ( email )

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United States
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National Bureau of Economic Research (NBER)

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Cambridge, MA 02138
United States

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