Identifying Criminals’ Risk Preferences

33 Pages Posted: 20 Feb 2015 Last revised: 6 Dec 2016

See all articles by Murat C. Mungan

Murat C. Mungan

George Mason University - Antonin Scalia Law School, Faculty

Jonathan Klick

University of Pennsylvania Carey Law School; Erasmus School of Law; PERC - Property and Environment Research Center

Date Written: 2016


There is a 250 year old presumption in the criminology and law enforcement literature that people are deterred more by increases in the certainty rather than increases in the severity of legal sanctions. We call this presumption the Certainty Aversion Presumption (CAP). Simple criminal decision making models suggest that criminals must be risk-seeking if they behave consistently with CAP. This implication leads to disturbing interpretations, such as criminals being categorically different than law abiding people, who often display risk-averse behavior while making financial decisions. Moreover, policy discussions that incorrectly rely on criminals’ risk attitudes implied by CAP are ill-informed, and may therefore have unintended negative consequences.

In this article, we first demonstrate, contrary to most of the existing literature, that CAP consistent behavior does not imply risk-seeking behavior. A host of considerations that are unrelated to risk-attitudes can generate behavior that is consistent with CAP, including stigmatization; discounting; judgment proofness; the forfeitability of illegal gains; and the possibility of being punished for unsuccessful criminal attempts. Next, we discuss empirical methods that can be employed to gain a better understanding of criminals’ risk-attitudes and responsiveness to various punishment schemes. These methods focus on the various non-risk-related-considerations that may be responsible for CAP consistent behavior. Finally, we discuss the importance of gaining a better understanding of criminals’ attitudes for purposes of designing optimal law enforcement methods, punishment schemes for repeat offenders, plea bargaining procedures and standards of proof.

Suggested Citation

Mungan, Murat C. and Klick, Jonathan, Identifying Criminals’ Risk Preferences (2016). Indiana Law Journal, Vol. 91, P. 791, 2016, U of Penn, Inst for Law & Econ Research Paper No. 15-5, FSU College of Law, Public Law Research Paper No. 740, FSU College of Law, Law, Business & Economics Paper No. 15-8, Available at SSRN: or

Murat C. Mungan (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Jonathan Klick

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
2157463455 (Phone)

Erasmus School of Law ( email )

3000 DR Rotterdam

PERC - Property and Environment Research Center

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Suite A
Bozeman, MT 59718
United States

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