The Optimal Evidence Threshold: Balancing the Frequency and Severity of Wrongful Punishment

Richard Hynes

Supreme Court Economic Review, 2018, vol. 26, issue 1, 113 - 134

Abstract: Prior literature argues that optimal sanctions are fixed and maximal and that the optimal evidence threshold balances the social costs of wrongful convictions (lost deterrence) and wrongful acquittals (chilling of benign behavior). This chilling argument is an externality argument. If punishment affects only the punished and there are no other externalities, the net social value of the chilled behavior is zero. Even without chilling costs, differences in how punishment affects defendants and third parties can justify nonmaximal sanctions. When optimal sanctions are nonmaximal, the optimal evidence threshold depends on these differences because this threshold balances the frequency against the severity of wrongful punishment.

Date: 2018
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