David R. Henderson  

Prison Sentences Much Longer than Juries Would Like

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Jacob Sullum, over at Reason's Hit and Run blog, has a very interesting post about a federal judge in Cleveland who, after a jury found a man guilty of receiving, possessing, and distributing child pornography, polled the jury for the jurors' view of a just sentence. The mandatory minimum was 5 years in prison, the sentence recommended by prosecutors was 20 years, and the term indicated by federal sentencing guidelines was 21 to 27 years.

I'll go into the jury's results more than Jacob did. Here's the link. As you can see, the mean recommended sentence was 14.5 months, the median was 8 months, the mode was 24 months, and the range was 0 to 60 months.

So the judge gave the defendant the lowest sentence he could give: 5 years. As you can see from the link, only one of 12 people who voted guilty thought this was just. Every other juror had a number substantially lower.

Interestingly, according to Judge Mark W. Bennett, a federal district court judge in Iowa, quoted in a piece by Eli Hager of The Marshall Project:

Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence, every time - even here, in one of the most conservative parts of Iowa, where we haven't had a "not guilty" verdict in seven or eight years - they would recommend a sentence way below the guidelines sentence.

You might wonder what I'm doing writing about this on an economics blog. It's for two reasons.

First, this issue has a huge economics aspect. Those who are consigned to prison for years take a huge hit on their lifetime income and wealth.

Second, for all the talk about the top 1%, there's not nearly enough talk about the bottom 1%. A large fraction of the bottom 1% are in prison, and a large fraction of that fraction should not be.

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COMMENTS (20 to date)
Don Boudreaux writes:

Bravo, David!

Tom West writes:

Indeed, illuminating.

However, it would be interesting to see how far the juries recommendation would shift for defendants that are of a different race or economic class than the defendant.

Sometimes minimum sentences have the effect of preventing those who are white and middle class from receiving vastly lower sentences than those who aren't.

(To be clear, I'm almost always in favor of the reduced penalty applying to everyone, but I am cognizant of the fact that lesser sentences applied only to white middle-class may very well preclude any push to have lesser sentences for all.)

Toby writes:

That's very interesting!

I am guessing the more information people have the lower the sentence or is this because they can put a face on the person that they're putting away that makes them recommend a lower sentence.

The first implies to me that sentences should be lower, whereas the second implies to me that the sentencing guidelines are perhaps a good thing as it keeps justice blind.

Would love to hear your thoughts on this.

Matt Moore writes:

I always assumed that the reasons that judges did sentencing instead of juries was to eliminate any residual element of mob justice - that is, to hold down the sentence.

Maybe that was the original thought, but guidelines have got stricter in a political arms race

Granite26 writes:

or because the aggrieved party is now predominately the gub'mint and they are the source of the mob justice, as opposed to the relatively uninvolved jury (eg)

I'm curious about the bottom 1% being disproportionately jailed, though. It sounds like it's probably true, but I'm also concerned that there's a little bit of "just so" about it given that being in jail means you aren't working, so of COURSE you're at the bottom. Presumably this is really just 'people who would be in the bottom 1% of people if they weren't in jail' which is more meaningful.

Harold Cockerill writes:

It would be interesting to see the makeup of the jury specifically what percentage were parents. I think if I were a defense attorney I would do my best to keep parents off a jury considering a child pornography case.

David R. Henderson writes:

I'm also concerned that there's a little bit of "just so" about it given that being in jail means you aren't working, so of COURSE you're at the bottom.
Exactly. I gather that you didn’t read my article.

blink writes:

I am all in favor of reducing sentences, but I am not sure that juror intuitions provide much evidence in support of doing so.

I think jurors have a different hypothetical in mind: If everyone who committed this crime were punished, what should the punishment be? In particular, jurors are unlikely to "scale up" punishments to account for the small probability of being caught and convicted.

For the same reason, I do not place much weight on common objections to, say, surge pricing. The underlying motivation/intuition is the same.

Andrew_FL writes:

I think I'm with you in general but not in this specific case.

Well, I'm not sure that, in general I think juries would necessarily pick the best sentence to give. But what I mean is, I'm sure many people for certain kinds of crimes are over sentenced. And I'm not in favor of mandatory minimums in general, though I think I would be for certain kinds of crimes and offenses.

But my reaction, just viscerally, of a crime of this particular nature? Kind of "what the heck is wrong with these jurors?"

zeke writes:


I don't think "scaled up" punishment and surge pricing are similar in practice. Surge pricing relates to a limited supply (due to the surge) and ensuring that the value goes to the top bidder, i.e. the one who values it most. Surge pricing also encourages excess supply, as there is now a greater incentive to send resources/provide services during the surge. In the end, surge pricing creates excess economic value.

I was taught that there is empirical evidence which finds that criminals tend not to consider the severity of the penalty (i.e. 5 years v. 10 years). Instead, they consider the changes of being caught. So, you likely are not getting any added deterrent benefit by increasing the penalty, but perhaps it relates to a just desserts theory. Regardless, it is therefore not like surge pricing because it really doesn't impact behavior at all.

jon writes:

I worked as an MD in the prison system for 5 years. Most individuals there were clearly in the 1% in terms of need for structure and control.....For some, incarceration is life-saving.

I woud urge economists to consider how anti-"marginal revolution" the criminal justice system is by nature. Community safety tradeoffs are referenced only in terms of precedent (legal) and public choice incentives. In the meantime, in a completely parallel universe, children of the upper 1% have their pathologies managed by the newer pharmaceuticals and experienced psychologists. Every year its getting technologically a little easier to control addictions and the sociopathic portions of autism spectrum.

We need competition among different mandatory social control networks to "creatively destroy" the current criminal justice system. There are many many other ways to control antisocial behavior which would work better than the current system. Unfortunately, there is no room for a Sam Walton in a world governed by lawyers....

Thomas Lee writes:

Here's a recent article in the Atlantic which uses economics (though it doesn't call it that) to discuss crime and incarceration trends in the United States. It says, for example, that while incarceration may work to some degree, mass incarceration faces "sharply declining marginal returns".


Nathan Ashby writes:

The poor pedos. Won't someone think of their earning potential?

When the jury disagrees with the voters, why the assumption that the voters have it wrong? Indeed, one would assume the presence of of mandatory minimum sentences implies that voters believe that there is a systematic bias towards inappropriately soft sentences.

Jamaal writes:


I think its because as a juror you see an individual criminal and the circumstances as opposed to Crime. I know im my one instance of being a juror we found two defendants guilty of robbery in the second degree, kidnapping and with participation in a criminal street gang as an enhancement for both charges. Both were sentenced to 20ish years. Knowing the details of the case I think they really deserved 1-2 tops because the actual action was minor. Due to how the statues are written the jury instructions pretty much answered themselves.

I consider jury service a much higher civic obligation than voting. You are deeply intertwined in the system and your impact is clear and immediate. Although I understand the personal burden it places on people it really saddens me to hear people talk about how how they always get out of jury duty or that they just ignore summons.

Granite26 writes:


You are correct, I hadn't clicked through to the article. That changes the tone of the comment significantly. It takes it from 'a large portion of the poor are unjustly imprisoned because of a horrible legal system', to 'being imprisoned unjustly has an outsized effect on your income'. Which I agree with(not that I didn't agree with it before). Apologies for not clicking through to all the links.

David R. Henderson writes:

Apology accepted. Yes, being imprisoned unjustly has a huge effect on your income. Also, being imprisoned justly has a huge effect on your income. I care more about the former than the latter, but I care about the latter too, especially if they are imprisoned for much longer than I think they should be: of course, you could put overly long sentences in the “unjust” category.

Thomas Sewell writes:

So let's talk remedy, now.

I'm sure there are more effective solutions, if they can be implemented, but one solution everyone reading this could implement is that if you are asked to serve on a jury where someone is guilty of a legitimate crime, but the minimum sentence is higher than you believe is a just result, then perhaps consider attempting to influence your fellow jurors to go with a lessor included offense instead in order to reduce the sentence?

David R. Henderson writes:

@Nathan Ashby,
When the jury disagrees with the voters, why the assumption that the voters have it wrong? Indeed, one would assume the presence of of mandatory minimum sentences implies that voters believe that there is a systematic bias towards inappropriately soft sentences.
I don’t have any evidence, nor, I suspect, do you, that the jury disagrees with the voters. Those mandatory minima were not typically voted in. Indeed, last November, when we in California had a chance to vote to reduce penalties, we did so, by a 59.6% to 40.4% vote.

David R. Henderson writes:

@Thomas Sewell,
I agree, but it’s tricky. I’ve never served on a jury, but I’m told by those who have that you’re prohibited from doing your own research to find out the prison sentence. Hard to enforce, but what’s not so hard to enforce is preventing you from telling the results of your search to fellow jurors. It takes only one of twelve to fink on you.

ivvenalis writes:

@Nathan Ashby
The referendum on the federal sentencing guidelines must have been before my time; I certainly don't recall voting on it.

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