The abolition of the death penalty in nineteenth century England led to harsher sentences and raised the chances that defendants would be convicted. That is the central finding of a new study of historical records by Anna Bindler and Randi Hjalmarsson, to be presented at the Royal Economic Society''s annual conference at the University of Bristol in April 2017.
Data from more than 200,000 cases from the Old Bailey Criminal Court in London from 1715 to 1900 show that abolishing capital punishment permanently increased the overall chance of conviction by more than 10%, although juries were more lenient towards women than men. When transportation to penal colonies was abolished, this also increased the chance of conviction by 5.5%. This may imply that harsher sentencing guidelines might have the reverse effect – making juries reluctant to convict.
The authors draw two implications for the modern criminal justice system: ''The first order goal of criminal justice policies is to reduce crime, often by increasing punishment severity. Our research demonstrates that such policies may have unintended consequences, actually decreasing the chances of conviction and counteracting the intended aims of the policy.''
''Second, the inability of a jury to be impartial and the unequal application of impartiality across defendant characteristics raise questions about the fairness of the criminal justice system.''
Does punishment severity affect a jury''s ability to be impartial and adjudicate a case on the basis of the evidence alone?
The new study finds that the answer to this question is a resounding yes. This is consistent with research that demonstrates that other factors external to the case – such as jury characteristics or media coverage – affect jury decisions.
The study uses two ''natural experiments'' in English history and archival data of more than 200,000 cases from the Old Bailey Criminal Court in London from 1715 to 1900, which was digitised by The Old Bailey Proceedings Online.
Specifically, the researchers study the abolition of capital punishment in the 1800s in England and the temporary halt of penal transportation to the Americas during the American Revolution. Their main findings are that:
• Abolishing capital punishment permanently increased the overall chance of conviction by more than 10%, and was driven by violent and sex offences as well as fraud.
• For property offences, the abolition substantially reduced the chance of conviction of a charge less serious than the originally charged offence.
• Effect sizes differ with defendant gender and criminal history: juries were more lenient towards women than men and more likely to impose death sentences for ''re-offenders'' prior to the reforms.
• The temporary halt of transportation increased the chance of conviction by around 5.5%.
The ''experiments'' – changes in punishment severity in English history
In the early 1700s in England (a period known as The Bloody Code), the primary sanctions were transportation to the Americas and execution. The penal system was put into crisis when the American Revolution unexpectedly eliminated the Americas as a penal colony in 1776. This led to the first (albeit temporary) mass use of imprisonment in the hulks of ships on the river Thames.
Transportation eventually resumed with the establishment of an Australian penal colony but was abolished in 1853. Meanwhile, capital punishment was almost completely abolished by a series of offence-specific Acts in the mid-1800s.
Figure 1 below highlights the sharp changes in expected punishment studied in the analysis – namely the abolition of capital punishment and the temporary halt of transportation and contemporaneous increase in imprisonment.
The core of the empirical analysis compares how conviction rates changed for those offences for which the death penalty was abolished to those offences for which expected punishment did not change (that is, offences that remained capital or non-capital).
The advantage of this design is that it controls for any other changes in the English criminal justice system that applied to all offences, such as the creation of the Metropolitan Police in 1829.
Main findings and modern day policy implications
The main finding is that abolishing capital punishment led to the jury being ''harsher''. This is evidenced by a significant increase in the chance of conviction (and corresponding reduction in recommendations of mercy, which was no longer needed) and decrease in the chance of conviction of a lesser charge.
Moreover, these effects were not equal across defendants – most notably, juries (which were all male) were more lenient towards female than male defendants.
Although they are in a historical context, these results have important implications for today:
• The first order goal of criminal justice policies is to reduce crime, often by increasing punishment severity. This research demonstrates that such policies may have unintended consequences, and actually decrease the chance of conviction, which may counteract the intended aims of the policy.
• The inability of the jury to be impartial and the unequal application of impartiality across defendant characteristics raise questions about the fairness of the criminal justice system.
The fall of capital punishment and the rise of prisons: How punishment severity affects jury verdicts – Anna Bindler and Randi Hjalmarsson