Legislatures often require a specific or minimal sentence be imposed if certain conditions are fulfilled. This study shows how such rules might benefit defendants. Israeli law requires that a suspended prison sentence be activated if the offender is reconvicted of a further offense during the term of suspension. Hence, the suspended sentence becomes a sort of minimum sentence for a breach offense. Yet judges are allowed to prolong the suspended term if, among other things, the breach offense is minor and hence does not result in a prison sentence. Using propensity score matching to analyze a rich database of magistrate court cases, we find that courts use the exception much more often than expected and, more importantly, that judges refrain from sentencing breaching defendants to prison, even if the breach offense justifies imprisonment, in order to circumvent the requirement to activate the suspended sentence. Moreover, for severe offenses, courts are less likely to sentence an offender to prison if the offender is in breach of a suspended sentence, compared to a similar offender who is not in such breach. For such offenses, being in breach of a suspended sentence reduces the likelihood of a prison sentence. For some offenders, the suspended sentence thus becomes a benefit rather than a punishment.
Bibliographical noteFunding Information:
This research was supported by the Israel Science Foundation (Grant No. 593513). Earlier versions of this article benefited from the comments and criticisms of David Weisburd, Sam Gross, Adi Leibovitch, J. J. Prescott, Julian Roberts, Dan Simon, and Doron Teichman, as well as the participants of the ISF Workshop on Alternatives to Imprisonment; the 35th Annual Conference of the European Association of Law and Economics, Milan, Italy; the 13th Annual Conference on Empirical Legal Studies, Ann Arbor, MI; the Faculty Seminar at Tel Aviv University Faculty of Law; the Notre Dame University LAMB-TAU Conference; two workshops at the Hebrew University of Jerusalem, the Criminal Law Workshop and the Law, Economic and Empirical Legal Studies Workshop; and the anonymous reviewers of this journal. We also thank Dr. Ilya Novikov and Ms. Liraz Olmer from the Gertner Institute of Biostatistics and Biomathematics for their valuable assistance with the statistical analysis. Shira Efron supplied excellent research assistance.
© The Author(s), 2022. Published by Cambridge University Press on behalf of the American Bar Foundation.
ASJC Scopus subject areas
- Social Sciences (all)