Abstract
Prosecutors can influence judges’ sentencing decisions by the sentencing recommendations they make—but prosecutors are insulated from the costs of those sentences, which critics have described as a correctional “free lunch.” In a nationally distributed survey experiment, we show that when a sample of (n=178) professional prosecutors were insulated from sentencing cost information, their prison sentence recommendations were nearly one-third lengthier than sentences rendered following exposure to direct cost information. Exposure to a fiscally equivalent benefit of incarceration did not impact sentencing recommendations, as predicted. This pattern suggests that prosecutors implicitly value incorporating sentencing costs but selectively neglect them unless they are made explicit. These findings highlight a likely but previously unrecognized contributor to mass incarceration and identify a potential way to remediate it.
Highlights
Scientific attempts to understand the high rates of incarceration in the U.S frequently implicate tough-on-crime policies like mandatory sentencing laws, the war on drugs, economic disparities, the privatization of prisons, and a long history of racial bias
We found a main effect of information salience on subjectivized sentencing recommendation, based on a rating scale from minimum to maximum allowable, F(2, 175) = 3.37, p = 0.037 (One-way ANOVA)
Planned comparisons revealed that punishment recommendations were significantly higher when the cost of incarceration was not specified (M = 0.12, SE = 0.24, 95% CI [−0.36, 0.60]) than when it was specified (M = −0.81, SE = 0.27, 95% CI [−1.34, −0.29], p = 0.010; Fisher’s LSD)
Summary
Scientific attempts to understand the high rates of incarceration in the U.S frequently implicate tough-on-crime policies like mandatory sentencing laws, the war on drugs, economic disparities, the privatization of prisons, and a long history of racial bias (see Travis et al, 2014). Less attention has been paid to the roles of prosecutors, who have wide discretion in deciding whether or not to file criminal charges, which charges are filed, and even what sentence will be considered (see Wise et al, 2009; Byers et al, 2012; Bushway et al, 2014; Robertson et al, 2019; Eck and Crabtree, 2020). As adversaries to the defendant, prosecutors face a unique moral hazard: while they often stand to gain professionally by negotiating for harsh sentences, they are not required to answer for the costs of those sentences, which are paid by other levels of government. States pay an average of $33,000 per year in direct costs to incarcerate a typical offender (Mai and Subramanian, 2017), not including the many collateral (e.g., Kirk and Wakefield, 2018) or criminogenic consequences (e.g., Stemen, 2017) of incarceration, whose impact is most strongly felt by poor and minority communities (Bierschbach and Bibas, 2017)
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