Criminal law and behavioral law and economics: observations on the neglected role of uncertainty in deterring crime

Criminal sanctions are usually public, stable and predictable.In contrast, the practices governing the determination of theprobability of detection and conviction reinforce uncertainty.We invoke psychological insights to illustrate that criminalsprefer a scheme in which the size of the sentence is uncertainwhile the probability of detection and conviction is certain.Consequently, the choice to increase certainty with respectto the size of the sentence and to decrease certainty with respectto the probability of detection and conviction can be justifiedon the grounds that such a scheme is disfavored by criminalsand consequently has better deterrent effects.