Research Highlights Article

November 30, 2018

Fitting the punishment to the crime

How does the severity of a penalty influence jury decisions to convict?

Chris Fleisher

The severity of a punishment can influence jury decisions, according to a paper in American Economic Journal: Economic Policy.

Chris Fleisher/Bigstock

There’s been a resurgence of “tough-on-crime” talk in US politics.

But calls for aggressive policing, longer prison sentences, and broader use of the death penalty may not actually reduce crime or put “bad guys” behind bars. In fact, harsh penalties like capital punishment could make sympathetic jurors less eager to convict someone, according to a paper in the November issue of the American Economic Journal: Economic Policy.

Authors Anna Bindler and Randi Hjalmarsson say that punishment severity can have significant and lasting impacts on jury decisions, compelling jurors to convict less often when penalties are overly harsh and vice-versa.

Their research offers unique insights into the unintended consequences of harsh penalties and underscores the challenges facing policymakers who advocate for criminal justice reforms.

“Our results show that the reforms did not just lead to a temporary adjustment of jury behavior,” Bindler said in an email interview with the AEA. “This is important when we think about the policy implications of such reforms: Do we expect changes to happen in the short-run and/or in the long-run?”

Our results show that the reforms did not just lead to a temporary adjustment of jury behavior.

Anna Bindler

There have been a number of recent studies of how expected punishment changes the path that the accused take through the criminal justice system. There’s evidence that parole boards, judges, and prosecutors are swayed when making decisions about the fate of someone accused of a crime. Still, not much is known about how the potential punishment influences jury decisions.

To answer this question, Bindler and Hjalmarsson looked back to 18th century England, collecting archived trial data from London’s Old Bailey Criminal Court to study how two major events — the abolition of capital punishment and the American Revolutionary War — influenced convictions.

Hjalmarsson discovered the Old Bailey data when she was looking into other questions around gender and criminal justice. The data, she said, covers a particularly fascinating 200-year period that is useful to examining the impact of major reforms.

“This period and context is marked by a number of dramatic changes: the first professional police force, the abolition of capital punishment, the abolition of transportation [to penal colonies], the growth of prison as a sanction, the introduction of attorneys, the introduction of a presumption of innocence,” Hjalmarsson said in an email. “Many of these changes represent large shifts in punishment severity, the magnitudes of which are rarely seen in a contemporary context.”

They were interested in two particular changes: the abolition of the death penalty for certain crimes, and the sudden halt of transporting felons to America during the Revolutionary War.

In the early 1700s, imprisonment barely existed in England. The primary sanctions were either execution or being shipped to America, then a kind of “Siberia” for English convicts. But the sudden colonial revolt in 1776 put the British penal system into crisis. Convicted felons could no longer be sent to America, leading to the first mass use of prison sentences. (The practice resumed years later with the establishment of a penal colony in Australia.) Indeed, the share of transportation sentences plummeted from 75 percent before the war to zero.

Decades later, England began to phase out capital punishment for many offenses, including fraud, theft, arson, and sexual assault.

Knowing a suspect faced a lesser penalty, would juries be more likely to convict?

Indeed, the authors found significant effects. Abolishing the death penalty increased the chance of conviction of any charge by 22 percentage points, 37 percent for violent and sex offenses.

The halt of transporting prisoners overseas also had an impact, with the chance of conviction increasing about 5 percentage points.

And the effects were lasting. Conviction rates didn’t just rise after the reform and then drop years later. They stayed higher.

Attitudes toward capital punishment, of course, have changed over time. England no longer ships convicts to the Americas or Australia. But this research still offers valuable insights about the fairness and impartiality of criminal justice systems.

Policymakers rely on police, prosecutors, juries, and judges to implement their laws. If those agents think a punishment is too harsh, they may be less willing to carry out the policy, Hjalmarsson said.

“Even if President Trump could get a law passed making drug-trafficking a capital offense, such a policy may be completely ineffective on deterrent grounds . . . if these agents of the criminal justice system perceive such a punishment to be disproportionate,” Hjalmarsson said.

It also shows that jury decisions depend on more than just the facts.

“Juries, at the time and today, are expected to determine whether the facts of a given case prove the defendant’s guilt beyond reasonable doubt,” Bindler said. “The punishment at stake is not part of these facts, yet we find that it impacts juries’ decisions.”

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How Punishment Severity Affects Jury Verdicts: Evidence from Two Natural Experiments appears in the November issue of the American Economic Journal: Economic Policy.