Sentencing Discretion and Burdens of Proof

Abstract

Typically, judges retain sentencing discretion in criminal cases, but in some states this discretion is given to juries. One criticism of jury sentencing is that jurors will be tempted to issue verdicts, where they return a guilty verdict but a light sentence when they are uncertain about the facts of a case. A simple expected utility model shows that, under reasonable assumptions, any fact finder with sentencing discretion (juror or judge) should engage in behavior that is observationally equivalent to a compromise verdict. Intuitively, the fact finder chooses a more lenient sentence than the punishment that fits the crime because he wants to mitigate the potential cost of a wrongful conviction; in turn, a lower cost of a wrongful conviction leads him to reduce his standard of proof. Whether compromise verdicts occur in practice remains an open empirical question.