Selecting among acquitted defendants: procedural choice versus selective compensation

Ansgar Wohlschlegel

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Abstract

Being charged with a crime often results in social stigma even if the defendant has been cleared of the charges. For instance, an employer may anticipate that a criminal's expected productivity is lower than an average person's, or a landlord may anticipate problems when letting a house to a criminal. Since the proportion of criminals even among acquitted defendants is larger than that among the general population, defendants will earn lower wages and pay higher rent even after acquittal.

In a recent paper, Daughety and Reinganum (2014) show that the Scottish Verdict, in which juries can, based on the strength of the evidence, acquit defendants either as 'not guilty' or as 'not proven', delivers a more precise signal to society on the defendant's true guilt than the standard rule, and thus implies that truly innocent defendants are less likely to be stigmatised. Based on this result, Daughety and Reinganum (2016, henceforth DR) analyse two different ways of implementing the Scottish verdict within the U.S. criminal justice system, one in which defendants can decide between being adjudicated under the standard rule and under the Scottish verdict, and another one in which juries may award compensation to acquitted defendants if the evidence against them is particularly weak (selective compensation). They _nd that, although only innocent defendants are better off under the Scottish verdict, even guilty defendants would opt for it in order to imitate the innocents. Furthermore, selective compensation permits less accurate informal punishment than the Scottish verdict (unless prosecutors are not held responsible for compensation) but might be better implementable in practice.

In the following, I will discuss three ways of extending DR's analysis: allowing for risk-averse defendants, considering the social cost of informal punishment even of truly guilty defendants, and the protection of a defendant's privacy as an alternative means of avoiding informal punishment of truly innocent defendants.
Original languageEnglish
Pages (from-to)138-141
JournalJournal of Institutional and Theoretical Economics
Volume172
Issue number1
Early online date15 Jan 2016
DOIs
Publication statusPublished - 1 Mar 2016

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