Criminal Law and Behavioral Law and Economics: Observations on the neglected role of Uncertainity in Deterring Crime

Abstract

Criminal sanctions are usually public, stable and predictable. In contrast,the practices governing the determination of the probability of detection andconviction reinforce uncertainty. We invoke psychological insights to illustratethat criminals prefer a scheme in which the size of the sentence is uncertainwhile the probability of detection and conviction is certain. Consequently, thechoice to increase certainty with respect to the size of the sentence and todecrease certainty with respect to the probability of detection and convictioncan be justified on the grounds that such a scheme is disfavored by criminalsand consequently has better deterrent effects.