Sentencing discretion and burdens of proof

Alexander Lundberg*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

5 Scopus citations


In the US, judges typically 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 "compromise 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 any fact finder with sentencing discretion 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. Although critics of jury sentencing intuit the risk of compromise, a bench trial poses the same risk for a judge. Alternatively, the jury trial format (jury verdict, judge sentence) can lessen the risk of compromise if juries are denied punishment information.

Original languageEnglish (US)
Pages (from-to)34-42
Number of pages9
JournalInternational Review of Law and Economics
StatePublished - Jun 1 2016
Externally publishedYes


  • Burden of proof
  • Compromise verdict
  • Jury sentencing
  • Sentencing discretion

ASJC Scopus subject areas

  • Finance
  • Economics and Econometrics
  • Law


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