Law Commons^™

Identifying Criminals’ Risk Preferences, Murat C. Mungan, Jonathan Klick

Indiana Law Journal

There is a 250-year-old presumption in the criminology and law enforcement literature that people are deterred more by increases in the certainty rather than increases in the severity of legal sanctions. We call this presumption the Certainty Aversion Presumption (CAP). Simple criminal decision-making models suggest that criminals must be risk seeking if they behave consistently with CAP. This implication leads to disturbing interpretations, such as criminals being categorically different from law-abiding people, who often display risk-averse behavior while making financial decisions. Moreover, policy discussions that incorrectly rely on criminals’ risk attitudes implied by CAP are ill informed, and may therefore …

The Eighth Amendment’S Lost Jurors: Death Qualification And Evolving Standards Of Decency, Aliza Plener Cover

Indiana Law Journal

The Supreme Court’s inquiry into the constitutionality of the death penalty has over-looked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty. While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts. This blind spot biases the Court’s estimation of community norms and dis-torts its Eighth Amendment analysis.

This Article presents a quantitative study of …