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Theft is vast majority of prosecutions S o decline in probability of death sentence for theft D rives overall stati

Comment on Ashley Rubin The Declining Death Penalty in Eighteenth-Century London? The Role of Ecological Fallacy in Lenience-Based Accounts Dan Klerman Conference on Empirical Legal Studies October 25, 2013. Theft is vast majority of prosecutions

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Theft is vast majority of prosecutions S o decline in probability of death sentence for theft D rives overall stati

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  1. Comment onAshley RubinThe Declining Death Penalty in Eighteenth-Century London?The Role of Ecological Fallacy in Lenience-Based AccountsDan KlermanConference on Empirical Legal StudiesOctober 25, 2013

  2. Theft is vast majority of prosecutions So decline in probability of death sentence for theft Drives overall statistics Masks increase in probability of sentence for other crimes Relatively small change in case composition Is it helpful to describe this as ecological fallacy? Contrast Simpson’s paradox

  3. Simpson’s Paradox (hypothetical data)

  4. Theft is vast majority of prosecutions, sodecline in probability of death sentence for theft Drives overall statistics Masks increase in probability of sentence for other crimes Relatively small change in case composition Is it helpful to describe this as ecological fallacy? Contrast Simpson’s paradox Is it problematic to say that legal system became more lenient overall?

  5. Control for Case Strength • Maybe non-theft cases got stronger after 1718 • So, given cases of equal strength, system was more lenient even in non-theft cases • Maybe theft cases got weaker after 1718 • So, given cases of equal strength, system got harsher in theft cases • Potential controls • Value & type of stolen goods • Sex, age & status of offender • Relationship between offender & victim • # of witnesses • Prior convictions • Whether prosecutor or defendant had a lawyer • Literacy

  6. Identify Actors and Mechanisms • Jury • Pious perjury increased (only theft?) • Other ways for juries to affect sentence • Judge • Sentencing discretion of judge • More transportation for theft, but not for other crimes • More or fewer requests for pardons • Greater or lesser stringency in administration of benefit of clergy • Legislators • Greater percentage of non-theft crimes eligible for death penalty • Changes in eligibility for transportation and/or benefit of clergy • Neighbors • Less petitioning for pardons? • Prosecutors • Less charging of capital offenses

  7. Other Questions • Why focus on pre/post 1718? • Could test for other breakpoints • Could test for overall/continuous trend • Death sentence versus execution? • Decision to prosecute • Coroner’s data for homicide

  8. Conclusion • Important example of benefit of quantitative analysis of legal history • Convincing • Additional analysis could make truly outstanding • Control for case quality • Explain which actors & mechanisms were responsible for increase/decrease in leniency

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