The Impact of Direct Democracy on Sentencing Behavior
Justina A.V. Fischer*
Abstract
This paper aims to gain insight into whether political institutions affect the sentencing
behavior of courts. Based on Frey (1997), it is assumed that in more direct democratic
systems an implicit contract based on mutual trust between the citizenry and the government
exists, in contrast to a command-and-control structure in a more representative political
system. In generalization of hypotheses developed in the following tax compliance literature
(Feld and Frey 2002), it is therefore conjectured that in more direct democratic cantons
punishment of serious offenses should be significantly more severe than in more
representative political systems, but punishment of less severe infractions should be judged
more graciously. Using data on 40 000 cases of Swiss first offenders convicted of driving
while intoxicated between 1994 and 2001, empirical analyses at the individual and cantonal
level seem to support these hypotheses.
Key Words: direct democracy, economic model of crime, implicit contract
JEL Classification: H73, D78, K42
STICERD-LSE, Houghton Street, London WC2A 2E, [email protected]
Financial support of the Swiss national Science Foundation is gratefully acknowledged. I am also indebted
to Dr. Fink and Mr. Vaucher of the Swiss Federal Statistical Office for providing me with the data, and
participants of the 2nd French-German Talks in Law and Economics (Saarbrücken, 2005) for helpful
comments.
1 Introduction
A linkage between the shape of political institutions and the crowding in of civic virtues
was first hypothesized, formalized and empirically tested by Frey (1997). The following
literature on tax evasion in Switzerland was supportive of the existence of a mutual trust
relationship between tax administrations and tax payers in cantons with more political
participation opportunities, which is characterized by lower control intensity and lower levels
of tax evasion (Feld and Frey 2002). According to this literature, a more favorable treatment
of (tentative) tax evaders was both conjectured and found in cantons with more citizen
empowerment, but equally a more severe punishment of those tax evaders who were actually
detected (Feld and Frey 2002). Extending this idea to a general societal level, this paper
hypothesizes that in more direct democratic political systems a more severe punishment of
more serious infractions of rules should be observed, whereas less severe offenses should be
punished more graciously.
These hypotheses are empirically tested using a unique dataset on 40 000 Swiss first
offenders of the mass offense drink-driving from 1994 to 2001. Switzerland is particularly
suitable for such an empirical test as it consists of 26 cantons which differ in their political
participation opportunities granted in their cantonal constitutions. Furthermore, the Swiss
criminal courts are located at the cantonal and municipal level and follow different sentencing
traditions, although bound to the identical legal framework set by the federal Swiss Criminal
Code.1 To my knowledge, this is the first paper trying to empirically demonstrate the presence
of such linkage between political institutions and the severity of punishment for an offense
outside the tax evasion field.
Equally, this paper contributes to the international discussion on reforming constitutions.
It sheds light on the interconnectedness between the degree of empowerment of the citizenry
and emerging societal equilibria between the citizenry and the state, so that a reform of any
political institution might call for accompanying measures which aid maintain the new
equilibrium. To the Swiss reader, the question of institutional determinants of differing
sentencing behavir might be important as there is an ongoing effort of the Swiss Supreme
Court to harmonize sentencing practices of Swiss cantonal criminal courts. This paper might
1
Only very few criminal cases are decided by he Swiss Supreme Court. There is no federal criminal court.
2
provide arguments why a complete harmonization might be either not achievable or even
counterproductive.
The reminder of this paper is organized as follows: first, section 2 develops testable
hypotheses based on the related literature, while section 3 describes the data and provides
necessary legal background information. Descriptive statistics of the variables of interest are
presented in section 4, while the model is introduced in the following section. Finally, the
estimation results are displayed and discussed (section 6), while section 7 concludes.
2 Context and Hypotheses
Political institutions are thought to shape people’s behavior and how they view the
government; on the reverse, the relation between the citizen and the state determines what
types of institutions are chosen by the electorate and how they evolve over time. For these
reason, this paper assumes that there exists a linkage between political institutions and the
quality of the relationship between citizens and the state, as suggested by e.g. Pommerehne
and Weck-Hannemann (1996). Over time, two types of social equilibria might evolve (Frey
1997): On the one hand, more representative political systems are believed to develop a more
paternalistic view of their citizens and tend to treat them as subjects whose obedience and
compliance is maintained through devices of discipline, command and control (‘constitution
for knaves’, Frey 1997). On the other hand, a relationship of mutual trust between
government and citizenry, a so-called psychological contract, might equally evolve. In such
equilibrium, trust is signaled by the government through giving citizens stronger popular
rights and looser control of their activities. The presence of these two equilibria has been
empirically corroborated in various tax evasion studies on Switzerland, showing that higher
levels of tax morale are linked to stronger voter participation rights (Weck-Hannemann &
Pommerehne 1989, Weck-Hannemann & Pommerehne 1996, Frey 1997, Feld and Frey 2002,
Torgler 2005).
Based on these preliminary thoughts, it is obvious that punishment of citizens who deviate
from compliant behavior must be handled differently in these two political systems. In the
equilibrium of the command-and-control-type, the government anticipates that citizens pursue
their own selfish and ‘knavish’ goals only, including even rule-breaking through criminal
3
activities as part of their rational utility maximizing behavior (Frey 1997). According to the
economic model of crime (Becker 1968), punishment is optimal if the societal loss is
minimized at the aggregate level. For the single individual, expected gains from infringements
are ‘eaten up’ by the government’s crime combating measures, and the severity of punishment
should rises with the gains from such criminal activity. A higher level of control of the
citizenry, however, translates into a greater probability of detection, so that the government in
a more representative political system needs only a medium level of punishment in order to
maintain its societal equilibrium state2. Trust between citizenry and government plays only a
negligible role.
In a society based on an implicit contract, the government’s punishment as an answer to a
citizen’s deviation from the equilibrium behavior has to take into account two goals: on the
one hand, the deterrence of future incidences of non-compliance, but, on the other hand, the
future maintenance of the societal trust basis, the ‘civic virtues’, necessary for maintaining the
mutual-trust equilibrium (Frey 1997). To sustain such an implicit contract, the government
signals its trust through a lower level of control compared to a command-and-control
equilibrium. Indeed, in more direct democratic cantons police expenditure, the number of
policemen per capita (proxying the clear-up rate), and control intensity of tax payers are
considerably lower (Schaltegger 2001; Feld and Frey 2002, Fischer 2005).3 In consequence,
according to the economic model of crime (Becker 1968), the severity of punishment then
must, ceteris paribus, be higher than in the alternative equilibrium with more government
control if an identical level of crime shall be achieved. Moreover, a citizen’s propensity to
comply is determined by the behavior of her comparison group (Frey 1997, Frey and Torgler
2004). Thus, non-compliance generates negative externalities and jeopardizes the mutual trust
basis, increasing the loss incurred by the offense to society (see Frey 1997). For this reason,
the punishment had to be more severe even if the identical detection probability was present.
Based on these thoughts, in a political system with stronger people’s rights a stricter
sentencing should be observed for deviations from the cooperative equilibrium behavior.
Such a severe punishment policy, however, comes at a psychological cost for society:
citizens might regard a more severe punishment of particularly minor deviations from the
equilibrium as ‘unfair’, thus crowding out the foundations of the mutual trust base. In
2
In the economic model of crime, the potential offender weights the expected gains with the expected costs of
her criminal activity. The expected costs consist of the probability of detection multiplied with the probability of
conviction multiplied with the severity of punishment. Hence, more control can substitute for a less strict
sentencing.
3
A similar conclusion was made for a simulated economy under two political systems (Pommerehne et al. 1994).
4
particular, such a policy might destroy the intrinsic motivation which is needed to sustain
such a relational contract (Frey, 1997).4 Therefore, the application of a law should always be
such that it acknowledges the citizens’ basic goodwill. Indeed, Feld and Frey (2002) have
revealed that tax administrations cantons with stronger popular rights do treat (potential) tax
evaders more respectfully, signaling that the offense was taken as some kind of unintentional
‘mistake’. Hence, a milder punishment of small deviations signals ‘reciprocal good faith’
(Frey 1997) on part of the government, which honors the psychological contract and
maintains it so.
Based on these preliminary thoughts and generalizing similar hypotheses developed for
the analysis of tax evasion (Feld and Frey 2002), the following hypotheses can be
formulated:5
Hypothesis 1:
In more direct democratic political systems, serious rule-breaking should be punished
more severely than in more representative political systems.
Hypothesis 2:
In order to maintain the trust basis of the equilibrium, a milder punishment of less severe
infringements should be observed in more direct democratic political systems.
3 Data
These hypotheses will be tested with annual cantonal data on about 39,700 Swiss first
offenders6 having received a drink-driving charge solely7 and sentenced between 1994 and
2001 8 . In Switzerland, drink-driving is one of the rare so-called mass offense which is
4
This argument is similar to the one presented in Feld and Frey (2003), in which it was hypothesized that milder
punishment of minor violations of tax law would increase the tax morale. The level of tax morale is, however, an
indicator of mutual trust.
5
Feld and Frey (2002) are able to corroborate their hypotheses with cross-sectional data on the treatment of tax
evaders in Switzerland.
6
A first offender is defined as someone who was not found guilty of any severe offense against the Swiss Traffic
Law, the Swiss Criminal Code or other laws leading to a criminal record in the last five years (personal
communication with Mr. Vaucher, BFS). Foreigners have been excluded because their criminal record is often
unknown.
7
These data contain so-called ‘pure cases’, that is driving while intoxicated was the main charge.
8
The data used in this paper are strictly confidential. I thank Dr. Fink and his collaborators of the Swiss Federal
Statistical Office for providing me with this dataset.
5
committed so frequently that a sufficient number of observations per canton and year exists.
The dataset contains information on gender, age and nationality of the convicted, an
identification variable of the court which also indicates the canton, two variables for the type
of main punishment (fine, suspended or unsuspended sentence) and two variables measuring
the duration of the prison time and the amount of the fine. Originally, these data have been
collected to control the work of courts, so there is no information on the personal income and
the blood alcohol concentration of the convicted. Art. 91 para. 2 of the Swiss Traffic Law
(SVG) defines driving while intoxicated the following:
“Wer in einem angetrunkenen Zustand ein Motorfahrzeug führt, wird mit Gefängnis oder
mit Busse bestraft.”
According to this article of the Swiss Traffic Law, drink-driving can be punished with a
fine or a prison term, which can be suspended. The rules for determining the severity of
punishment follows the sentencing rules laid down in the Swiss Criminal Code (StGB). By
criminal law, prison sentences are regarded as the most severe form of punishment, whereas
fines constitute a less severe form. Suspending the prison sentence is an act of grace which
aims to enhance a fast social re-integration of the offender into society. But, from a legal
perspective, probation is at the 'identical' level of severity as an unsuspended sentence.9 Prison
terms are measured by number of days while fine sentences are given in total amounts.10
According to art. 48 para. 2.,2 of the Swiss Criminal Code, the sentence should reflect both
the offender’s personal income, her family situation, but also the severity of her offense (i.e.
the alcohol level in her blood).11 For this reason, it is possible to use the type of main sentence
as a proxy for the severity of guilt in a drink-driving context. In the data, most of the
offenders were sentenced to fines or (suspended) prison terms or combination of both. In rare
cases (1.17% of all observations), also a so-called measure sentence was given which targets
persons in need of a medical or psychological treatment.
9
This ranking of the types of punishment is completely based on the stipulations of the criminal law. It is,
however, widely known in the criminological literature that suspended sentences are viewed as almost equal to a
non-punishment in the population. Based on these citizens' perceptions of sentences, fining would be the secondhardest punishment.
10
During the period of investigation, according to the Swiss Criminal Code, a calculation of so-called daily
installments of fines were not legally prescribed. Daily installments were introduced through the successful
revision of the Swiss criminal code in 2003, a practice that is already common in Northern and Middle European
countries.
11
This practice is in line with the economic model of crime which assumes that the elasticity of offense to
severity of punishment differs between individuals and is determined by personal traits and circumstances
(Becker 1968).
6
Observations with a measure sentence have been excluded from the data due to the
extraordinary nature this punishment. Furthermore, offenders of an age of more than 80 years,
younger than 16 years (3 observations), or with a sentence period longer than 365 days (9
observations) have been dropped as potential outliers or miscodings. 12 This deletion
procedure has resulted in 39'184 remaining observations. Additional controls at the cantonal
level were obtained from the Swiss Federal Statistical Office (BFS), the Federal Tax
Administration, the Swiss Household Panel and own calculations. Fines and other monetary
variables have been deflated to the year 1990 based on the BIP deflator provided by the
SECO. The following section gives an overview of the descriptive statistics of the sentence
types.
4 Descriptive statistics of sentences
1) Major and minor sentence
As Table 1 shows, of the 39,184 observations about 25% were sentenced to the mildest
form of punishment as main sentence, while about 15% were actually imprisoned, the most
severe punishment. The major portion of all convicted (about 60%) received a probation.
Table 1: Types and combinations of sanctions
Main
sanction
Fine
Suspended
prison term
Unsuspended
prison term
Total
#
Percentage
9,814
25.05
# receiving a
fine
9,814
23,678
60.43
21,410
90.42
5,692
14.53
2,283
40.11
39,184
100.00
33,507
85.51
Percentage
100.00
In most of the cases, prison terms as main sentences were combined with the payment of a
fine as minor, additional punishment (80.67% of all prison term receivers). (In case the fine
was the main sentence, it remains the sole and main punishment). In 33’507 out of 39’184
cases (85.51% of the total sample) such an additional fine sentence was given. We observe
that almost all persons sentenced to a suspended prison term had to pay a fine (90.42% of the
12
According to Dr. Fink and Steve Vaucher from the crime section of the Swiss Federal Statistical Office, prison
terms longer than 1 year are extremely unlikely and most probably a case of miscoding.
7
probation sample), while less than the half of those convicted to an unsuspended prison term
were also sentenced to a fine (40.11%).
Table 2: Distribution of fines and prison term according to main sentence
Main
sanction
obs.
Fine
Suspended
sentence
Unsuspended
Sentence
Total
9,814
23,678
5,692
39,184
Fine:
Statistics
Mean
Min
Max
St.dev.
1035.10
16.82
26064.29
849.41
Mean
Min
Max
St.dev.
863.24
0
21312.87
713.91
Mean
Min
Max
St.dev.
376.25
0
7333.91
580.34
Mean
Min
Max
St.dev.
835.54
0
26064.29
760.70
Length of
sentence:
Stats.
Mean
Min
Max
St.dev.
0
0
0
0
Mean
Min
Max
St.dev.
21.42
1
304
18.74
Mean
Min
Max
St.dev.
39.15
3
304
32.28
Mean
Min
Max
St.dev.
18.63
0
304
22.73
Corr
(length,
fine)
Rho = n.e.
Rho = 0.02* **
Rho = -0.13 **
Rho = -0.14 **
** = significance at the 1% level
Table 2 provides some descriptive statistics for the amount of fines (in 1990 Swiss Francs,
with ‘no fine’ coded as an amount of 0 Swiss Francs) for the various sub-populations of
convicted grouped by their type of main punishment. As expected, the maximum fine of about
26’000 Swiss Francs and the most sizeable mean of about 1’000 Swiss Francs can be found in
the subgroup of those for whom fining was the main sanction, with those receiving a
suspended sentence following. The smallest mean and maximum fine is found among those
who received an unsuspended prison term. Thus, these descriptive statistics let suggest that,
on average, the amount of fine decreases in the severity of the main sentence. The standard
deviations of the fines, however, differ far less between the subsamples.
Table 2 also displays some information on the observed duration of jail terms (in days),
which are grouped by type of main sentence. Certainly, by definition and in accordance with
the Swiss Criminal Code, those persons with a fine as main sentence did not receive an
additional prison term. The mean of the term length for suspended sentences is almost twice
as high as that for unsuspended sentences, indicating that those meted with a probation are
also given longer term lengths, on average. Thus, the duration of the prison term appears to
depend on the type of main sentence. While the minimum and the maximum of the prison
terms are of a similar magnitude in both prison subgroups, the standard deviation of those
with an unsuspended term appears substantially bigger than that for the other group.
8
The descriptive statistics in Table 2 might well suggest that the amount of fine decreases
in the severity of the main sentence (fine, suspended and unsuspended prison term), while the
severity of punishment measured by duration of prison term is the highest for those with an
unsuspended sentence. Indeed, the signs of the correspondent correlation coefficient for the
subpopulation of unsuspended sentences and the overall dataset point to the expected
direction. Thus, the severity of major and minor sentences appear to depend on each other, a
fact which has to be taken into account when building the model for the multivariate analysis.
2) A joint measure of the severity of punishment
In order to make various combined sentences of prison terms and fines comparable, it is
useful to construct one single overall measure of punishment which incorporates both
sentence types. This is only possible if one type of punishment can be converted into the other
type. As information on individual’s income is missing, a conversion of fine (given in total
amount) into hypothetical daily installments is not possible; one installment would then have
reflected the convicted’s forgone income and other individual disbenefits generated from
staying one day in prison.13 But, fortunately, StGB art. 49 para. 3, 2 stipulates that in case that
a fine is not paid duly by the convicted, it is to be transformed into a prison sentence.
Table 3: Hypothetical total prison term based on deflated fines
Main
sanction
Obs.
Converted
fine:
statistics
Mean
Min
Max
St.dev.
Fine
Suspended
Sentence
Unsuspended
Sentence
Total
9,814
23,678
5,692
39,184
33.00
.56
90
17.49
Mean
Min
Max
St.dev.
49.40
3
342.11
26.23
Mean
Min
Max
St.dev.
51.52
3
321.33
34.91
Mean
Min
Max
St.dev.
45.60
.56
342.11
26.89
The transformation rate is set at one day of institutionalization per 30 Swiss France of unpaid
fine, with the maximum duration in jail being set at 90 days (art. 49 abs. 3 StGB). Based on
these stipulations, it was possible to convert actual (deflated) fine sentences into hypothetical
prison terms. For 957 observations the term length had to be cut off at the legally stipulated
maximum. Equally, a fine of zero was transformed into a prison term of zero days. Finally,
13
In those countries in which daily installments are known, one day of payment shall be equal to one day in
prison, which is one day of forgone income beyond the subsistence level. According to Becker (1968), nonfinancial disutility from imprisonment is “the value placed on the restrictions in consumption and freedom”
(p.179).
9
the total (hypothetical) prison term was calculated as the sum of the actual prison term and the
converted fine. The following table provides some descriptive statistics (Table 3):
3) Correlations between direct democracy and the severity of punishment
Finally, it might be worthwhile investigating the simple correlations between direct
democracy and the severity of punishment prior to the econometric multivariate analysis.
Table 4 displays the correlation coefficients for the whole sample and for the subsamples
according to the type of main sentence. In general, a strong and significant positive
correlation between the degree of direct democracy and the severity of punishment seems to
be present (at the 1 % level of significance). This observation holds true for both the whole
sample and the subsamples, as well as for the amount of fine or the duration of the prison
term as well as for the compound hypothetical prison term. The size of the correlation
coefficients, however, let suggest that the severity increasing impact is most prominent for
persons receiving an unsuspended sentence, that is for those with probably the greatest
deviating behavior.
Table 4: Correlation between the degree of direct democracy and the severity of
punishment; 39’184 convicted
Sentence type
Amount of fine
(deflated)
Length of prison
term
Total prison term
(30 Sfr = 1 day)
Fine
0.1157**
Non existent
0.1625**
Suspended
sentence
Unsuspended
Sentence
Total
0.1018**
0.0208**
0.0900**
0.3236**
0.1546**
0.3173**
0.1287**
0.0191**
0.1218**
Main sanction
** = significance at the 1% level
Positive correlations are equally found with the data aggregated at the cantonal level
between 1994 and 2001 (Table 5). The correlation coefficients based on the cantonal means
reveal a significant positive link between the degree of citizen empowerment and the average
fine and the total (hypothetical) prison term (rho = 0.3463**, and 0.3251**, respectively), but
no relation for the average duration of a prison sentence (rho = 0.0240). Similar observations
are made based on aggregated subsamples by type of main punishment. The size of the
10
correlation coefficients suggest that a severity increasing influence of political institutions is
only present for those with a small and medium deviation from full compliance. In contrast to
the observations made with the individual data, such influence does not appear present for
those convicted with the most severe infringement of the traffic law.
Table 5: Correlation between the degree of direct democracy and the severity of
punishment; 201-207 observations
Sentence type
Main sanction
Amount of fine
(deflated)
Length of prison
term
Total prison term
(30 Sfr = 1 day)
0.1693*
Non existent
0.2934**
0.2982**
0.0202
0.2640**
0.0521
0.0797
0.0919
0.3463**
0.0240
0.3251**
Fine
(201 obs.)
Suspended
sentence
(207 obs.)
Unsuspended
Sentence
(202 obs.)
Total
(207 obs.)
** = significance at the 1% level, * = significant at the 5% level
5 Model and methodology
1) Individual level
To investigate the impact of direct democracy on sentencing behavior at the individual
level, the severity of punishment is regarded as a function of the degree of cantonal direct
democracy and important controlling variables:
y = f (direct democracy, individual characteristics, cantonal characteristics,
cantonal and year fixed effects)
The dependent variable y is either duration of prison term, amount of fine or total
(hypothetical) prison term, as defined in the previous section. The model exploits fully the
available individual information in the data by including the age of the offender at the time of
11
conviction and her gender. The degree of direct democracy is measured by an index which
takes on values on a continuum ranging from 1 (lowest level) to 6 (highest level). 14 Also
included is the type of main sanction, as it might proxy the severity of the offense (determined
by the blood alcohol level) as discussed in section 2. Second, the descriptive statistics in
Table 3 might hint at a potential substituting relation between the amount of fine and the
duration of the prison term. For this reason, the severity of punishment of the additional
sanction, the fine or the prison term, respectively, is also employed as a controlling variable.
Moreover, it is conjectured that a more conservative ideological position in the population is
in favor of a more severe punishment whereas a more leftist position prefers a fast reintegration into society; this influence occurs through judges responding to the political
preferences of the local population because either they are elected by them or they usually
have grown up among them. For this reason, the net share of conservative parties in the
cantonal government is also included. The log of the number of ordinary policemen per capita
in a canton ought to proxy the probability of detection, which is, according to the economic
model of crime (Becker 1968), in a substituting relation with the severity of punishment.15
Furthermore, to account for the fact that cantons might punish own residents differently from
‘alien’ traffic participants, the share of commuting motorized persons between cantons has
been included. Furthermore, the size of the canton measured by the population might proxy
for the amount of cantonal traffic. Finally, cantonal fixed and year fixed effects complete the
model specification. Cantonal fixed effects filter out cultural traits and other time-invariant
unobserved factors. These are, first, institutional differences in the criminal procedural codes
which vary substantially between the 26 cantons during the investigation period. Second,
fairly time-invariant differences with respect to drinking habits are observable between the
French-, Italian- and German-speaking parts of Switzerland (see table A1 of the Appendix).
This model is then estimated as a pooled OLS and clustering by cantons in accordance
with the Moulton-critique (1990), which also accounts for heteroscedasticity of the residuals.
Since the data are at the individual level, all cantonal characteristics are exogenous to the
single convicted. Due to the lacking of a suitable individual instrument, no Heckman selection
model accounting for the ‘selection’ into indifferent types of main punishment or political
regimes can be estimated. To circumvent a potential selection into different types of main
14
See Stutzer (1999) for its construction.
Ordinary police force includes all sworn policemen excluding those dealing with severe crimes solely
(criminal detectives). There is no information on either subjective or objective control probabilities at the
cantonal level available.
15
12
punishment, the hypothetical total prison term variable was constructed and employed. In
addition, a regression with the type of punishment as regressands and direct democracy as
regressor, however, showed no link between political institutions and the preference for a
particular type of punishment (see table A2 of the Appendix).16.
2) Cantonal level
In a second step, a similar model is estimated with aggregated data on an annual basis at
the cantonal level. The advantage of estimating a model at the cantonal level is that missing
individual data on personal income and marital status can partly be substituted with additional
aggregate measures. The ‘disbenefit’ of an analysis at the aggregate level, however, is the
potential subjectivity to the so-called ecological fallacy-problem (e.g., Robinson 1950) – that
aggregation might finally lead to biased estimators. Finally, as drinking habits between the
main cultural regions in Switzerland are quite time invariant (see table A1 of the Appendix)
and the resulting distribution of recorded blood alcohol level of the convicted should be quite
equal within cantons over time, cantonal fixed effects are most likely to fully capture the
effect of the (omitted) mean blood alcohol level. The model to be estimated then becomes:
y = f (direct democracy, aggregated individual characteristics, cantonal characteristics,
cantonal and year fixed effects)
where the dependent variable y is either the annual mean duration of prison term, the
mean fine (deflated to 1990), or the mean hypothetical prison term at the cantonal level.
Furthermore, also cantonal shares of male convicted and the mean age are employed. To
account for non-linearity in age, also the squared term of the mean age is included. Extending
the set of determinants of the individual level version of the model, as new cantonal
characteristics are added the cantonal income and its distribution (the log of per capita income,
a measure of income inequality). Finally, I have also included an indicator of the degree of
urbanization which might account for traffic richness and shares of ‘broken’ families.
Using only variables at the aggregate level leaves us with between 201 and 207 cantonal
observations, covering the period between 1994 and 2001. In contrast to using individual data,
endogeneity might be present in this model: the severity of punishment might impact the
16
Estimation results are available on request.
13
(future) number of offenses which, in turn, might influence again the control probability,
measured by the log of policemen per capita. Running various auxiliary regressions, however,
with the conviction rate (in the population) and further fiscal-political and economic
determinants as regressors on the log of the policemen per capita, however, showed that the
occurrence of drink-driving does not (significantly) relate to the chosen measure of control
probability.17 In addition, Hausman-Wu tests have been carried based on suitable and valid
instruments which could not reject the hypothesis of the exogeneity of the police force
variable. During these tests, the significance levels and directions of the coefficients of the
direct democracy variable did not change substantially in either model. For these reasons,
employing a 2SLS procedure was not deemed necessary. Estimations of the resulting
synthetic panel have been carried out with cantonal and time fixed effects and with
autocorrelation and heteroscedasticity consistent standard errors of the New-West type.
6 Estimation results
1) Duration of prison terms
The results for the duration of the prison sentences are displayed in Table 6. Persons
whose main punishment was a fine and who thus had not been sentenced to prison have been
coded with a zero-value in the dependent variable. In the whole sample (column 1), in the
subsample containing only prison term sentences (column 2), and in the subsample of
suspended prison terms only (column 2) we find no significant relation between the degree of
cantonal direct democracy and the length of stay in prison. We should note, however, that the
coefficients on the political institutions have always positive signs and that the one in column
(4) misses significance at the 10 percent level slightly. A strong duration increasing influence
of direct legislation is found for the subsample of unsuspended sentences (column (3)). The
size of the coefficient indicates that a rise in citizen empowerment from the minimum (1 point)
to the maximum (6 points) would lead to an increase in prison term by about 29 days.
As regards the socio-demographic controlling variables, we find for most of the regression
models that male offenders are more severely punished than female ones. Furthermore, we
also observe a non-linearity in age: while the youngest and the oldest age group receive
17
It might well be that there is a link in reality which remains opaque because the bad quality of the proxy for
the control effort. The chose specification follows the approach in Fischer (2005).
14
significantly lower prison terms, persons of a middle age (age 36 to 55 years) are punished
harsher.
For identifying the effects of the proxies of severity of offense it is best to analyze the
coefficients on the dichotomous variables for the type of main sentence: In column (1),
offenders with a medium and high level of blood alcohol, proxied by the (unsuspended)
prison term as main sentence, are punished more severely in comparison with those being
fined only. In the subsample of those receiving a prison term only (column (4)), persons with
a supposedly medium level of blood alcohol receive significantly shorter prison terms than
those with a high blood alcohol concentration. These findings are perfectly in line with the
statutes of the Swiss Criminal Code and show that the severity of punishment, here measured
by duration of prison term, increases with the severity of the offender’s guilt. The amount of
fine to be paid as an additional fine is positively (weakly) associated with the duration in
prison for the subpopulation of unsuspended and suspended prison sentences (columns 3 and
4), that vanishes in the subsample for all prison terms (column 2) and for the whole sample
(column 1).
A regards the remaining political and socio-demographic factors at the cantonal level, that
is ideology of cantonal government, population size and the share of inter-cantonally
commuting motorized persons, none of them appears to be significant. It might well be that
their influence is partly captured by the cantonal fixed effects. In addition, the relative size of
the police force does not exert a significant impact: this outcome might show that it proxies
the detection probability for intoxicated traffic participants badly.
Overall, it appears that in more direct democratic cantons there is a tendency that those
convicted of drink-driving receive considerably longer prison terms. Particularly in case of
unsuspended sentences, which are reserved for those with the most severe infringement of the
law, we find a strong positive correlation. In addition, those offenders with a longer duration
of prison terms also receive a harder punishment with respect to the minor sentence, the fine.
These findings are perfectly in line with hypothesis 1.
15
Table 6: Duration of Prison Terms
(1)
Full sample
Direct Democracy
Male
age18 – 25
age26 – 35
age36 – 45
age46 – 55
age56 – 65
age66 – 70
Main sentence: suspended
Main sentence: unsuspended
Amount of fine
Ideology of government
Log (police force)
Log (population)
1.867
(1.41)
1.207**
(4.06)
-3.460**
(4.50)
-0.706
(1.24)
1.420**
(3.02)
1.754**
(3.65)
0.678
(1.31)
-1.159*
(2.30)
21.037**
(7.81)
39.601**
(6.68)
-0.001
(0.61)
4.081
(1.10)
0.383
(0.10)
-40.847
(1.15)
(2)
Prison terms
(U and S)
2.665
(1.65)
1.388**
(3.63)
-4.912**
(5.28)
-0.471
(0.74)
2.089**
(3.77)
2.392**
(3.71)
1.002
(1.60)
-1.942**
(2.84)
-19.817**
(5.26)
.
(.)
0.001
(1.52)
3.139
(0.55)
1.821
(0.38)
-54.968
(1.00)
(3)
(4)
Suspended
Unsuspended
sentences
sentences
1.11
5.828*
(0.58)
(2.48)
0.647
4.850**
(1.70)
(4.49)
-4.516**
-9.244**
(3.90)
(5.72)
-0.817
-2.309
(1.01)
(1.53)
1.672**
1.156
(2.85)
(0.73)
2.130**
1.265
(3.82)
(0.75)
1.009
-1.881
(1.57)
(0.97)
-1.256
-5.959**
(1.40)
(3.27)
.
.
(.)
(.)
.
.
(.)
(.)
0.002+
0.003+
(1.71)
(1.72)
4.436
4.226
(0.86)
(0.50)
2.869
1.988
(0.69)
(0.27)
-58.296
-37.111
(0.99)
(0.86)
Share of commuting motorized
persons
0.576
17.983
19.979
12.696
(0.02)
(0.40)
(0.41)
(0.17)
Constant
525.682
750.157
786.117
585.155
(1.13)
(1.04)
(1.02)
(0.95)
Observations
39184
29370
23678
5692
Adjusted R-squared
0.42
0.31
0.23
0.40
Cantonal and time fixed effects are included but not reported. Estimation with autocorrelation and
heteroscedasticity consistent standard errors (Newey-West). **, *, + indicate significances at the 1, 5 and
10 percent levels, respectively. Absolute values of t-statistics are given in parentheses.
2) Amount of fine
Table 7 displays the results for the amount of the fine. Offenders who were given a prison
term only were coded with a zero-value in the dependent variable. For the overall population
16
of the convicted (column 1), the degree of direct democracy within a country is associated
with a lower level of fine. As the size of the coefficients indicate, the financial impact of
direct democracy is quite substantial as it ranges between about 140 and 850 Swiss Francs. A
significant fine reducing influence of political institutions is also observed for those receiving
a prison sentence or a probation (columns 3 and 4), but not for those with an unsuspended
sentence or those only having been fined (columns 2 and 5). The coefficients reveal that the
financial influence is larger for the suspended prison term cases (maximum is about 1170
Swiss Francs), and slightly smaller for the subsample of prison term cases (maximum is about
1060 Swiss Francs).
Again, male persons are more severely punished than female persons. As regards age, in
general, younger persons have to pay a substantially lower fine compared to the reference
group of persons aged 70 or above. As the fine is also reflects the convict’s income and
income rises with age, this finding is not surprising. The coefficients on the type of main
sentence in the full sample indicate that persons receiving a fine only have to pay significantly
higher fines than those persons given a probation (difference is about 590 Swiss Francs),
while no difference exists compared to those with a suspended prison term. This finding
reflects the fact that a fine as a main sentence triggers a higher amount to be paid, ceteris
paribus, which was already observed in the descriptive statistics (section 3). The result also
indicates the judges’ knowledge that probation has a low deterring impact compared to
unsuspended sentences which calls for a combination of suspended prison terms with a
substantially higher fine. The results for the sample of prison terms support this view as
persons with probation appear to receive substantially higher fine sentences (about 520 Swiss
Francs). The duration of the prison term by itself, however, does not appear to function as a
substitute for the amount of fine. This finding is in line with the regression results for the
duration of prison term reported in table 6.
A more conservative cantonal government appears to be associated with higher fines in
both the full sample, the subsample for persons being fined only and weakly for those
sentenced to a prison term. As already observed in Table 6, the coefficients on the policemen
per capita are not significant. In the full sample, more populated cantons appear to impose
lower fines on the convicted, but this effect vanishes in the various subsamples. Finally,
cantons with a higher share of incoming and outgoing motorized commuters appear to charge
higher fines. This effect is present both in the full sample (column (1)), and the subsamples
17
for prison terms (column (3)) and suspended sentences (column (4)), being in line with our
prediction.
Table 7: Total Amount of fines, 1994 – 2001
(1)
Direct Democracy
Male
Age 18 – 25
Age 26 – 35
Age 36 – 45
Age 46 – 55
Age 56 – 65
Age 66 – 70
Main sentence: suspended
Main sentence: unsuspended
Duration of prison term
Ideology of government
Log (police force)
Log (population)
Share of commuting motorized
persons
Constant
Observations
Adjusted R-squared
See table 6.
(2)
Full sample
Fines
-141.376**
-34.164
(4.65)
(0.75)
205.949** 231.756**
(6.98)
(4.83)
-363.734** -425.366**
(4.89)
(4.18)
-190.485** -243.468**
(3.32)
(2.94)
-108.634* -103.658+
(2.15)
(1.72)
-40.397
-3.5
(0.87)
(0.05)
-11.54
33.465
(0.24)
(0.42)
-110.591*
14.002
(2.30)
(0.12)
-117.833
.
(0.98)
(.)
-589.986**
.
(3.60)
(.)
-0.906
.
(0.62)
(.)
124.104*
205.490*
(2.17)
(2.17)
-41.018
41.08
(0.56)
(0.23)
-1,584.260*
-852.691
(2.41)
(0.75)
(3)
Prison terms
(S and U)
-176.647**
(3.83)
184.797**
(5.72)
-310.350**
(5.24)
-175.383**
(3.30)
-113.780*
(2.15)
-57.652
(1.22)
-32.212
(0.70)
-120.355*
(2.40)
521.808**
(4.42)
.
(.)
1.339
(1.50)
129.855+
(2.05)
-51.296
(0.61)
-2,072.153+
(2.05)
(4)
(5)
Suspended Unsuspended
sentences
sentences
-194.812**
-45.81
(4.41)
(0.84)
193.912**
69.216*
(5.81)
(2.25)
-346.341**
-73.695*
(5.17)
(2.27)
-202.938**
-15.609
(3.33)
(0.48)
-133.528*
3.428
(2.24)
(0.11)
-70.637
29.34
(1.32)
(0.83)
-34.525
2.035
(0.68)
(0.06)
-137.159*
-62.025
(2.45)
(1.14)
.
.
(.)
(.)
.
.
(.)
(.)
2.527
0.726
(1.59)
(1.53)
99.528
42.411
(1.42)
(0.39)
-92.124
154.267
(0.93)
(0.95)
-1,207.944
-2,045.013
(1.12)
(0.79)
3,102.315** 1,496.509 3,420.429* 3,548.276*
(2.86)
(0.91)
(2.26)
(2.18)
20,630.443* 11,783.533 26,220.936+ 15,278.757
(2.41)
(0.82)
(1.97)
(1.07)
39184
9814
29370
23678
0.19
0.18
0.27
0.22
1,846.794
(0.84)
29,319.297
(0.80)
5692
0.59
In sum, these estimation results show that an influence of direct democratic institutions on
the amount of fines is present, which however, differs according to the type of main sentence.
For convicted with a minor or most serious traffic law violation, no significant effect can be
observed. For persons with a suspended sentence, however, a substantial fine-decreasing
18
impact of direct democracy is observed. In other words, in more direct democratic cantons
those with only a medium deviation from compliance are punished milder in comparison with
the ones with the largest deviations. Those only fined, the mildest form of punishment,
however, are not treated more favorably. For this reason, hypothesis 1 is again, strongly
corroborated, whereas hypothesis 2 is only weakly supported by the results for medium
deviations from compliance.
3) Total hypothetical sentence term
Table 8 shows the results for the hypothetical total sentence, in which the fine was
transformed into a prison term and added to the actual prison sentence. In the full sample, we
observe a weak positive linkage between the degree of direct democracy and the severity of
punishment. Most revealing is, however, the analysis for the various sub-populations by
sentence type: direct democracy is severity of punishment-increasing for offenders with an
unsuspended sentence (column 5), but severity lowering for those who receive only a
suspended sentence (column 4). The magnitude of the estimated coefficients indicates that, in
the first case, the convicted is institutionalized by 4 days longer per one-point increase in
citizen empowerment, while, in the second case, the unsuspended prison term is reduced by
about 5 days per 1 point change. For those being fined, however, the degree of cantonal direct
legislation appears irrelevant (column (2)).
For the hypothetical total sentence, we find again that male persons receive a substantially
more severe punishment. In line with the previous findings, both younger and older persons
are treated more favorably while being middle aged triggers longer hypothetical prison terms.
The more serious the violation of the convicted is, the harder is the punishment, as the
coefficients on the type of main sentences in the full sample indicate. Again, more
conservative governments tend to be associated with a stricter sentencing practice, while more
populous cantons favor a milder punishment, at least in the full sample. In line with the
previous analyses, the proxy for the detection probability appears insignificant. Similarly to
the results for the amount of fines (Table 7), a higher share of motorized commuters between
cantons is associated with a higher hypothetical total prison sentence (columns (1), (3) and
(4)).
19
Table 8: Hypothetical total sentence, 1994-2001
Direct Democracy
Male
Age 18 – 25
Age 26 – 35
Age 36 – 45
Age 46 – 55
Age 56 – 65
Age 66 – 70
Main sentence: suspended
Main sentence: unsuspended
Ideology of goverment
Log(police force)
Log(population)
Share of commuting motorized
persons
Constant
Observations
Adjusted R-squared
(1)
Full
sample
-2.096+
(1.79)
7.284**
(8.85)
11.171**
(9.22)
-3.055**
(4.23)
0.917
(1.45)
3.024**
(4.60)
2.261**
(3.76)
-2.666*
(2.69)
17.230**
(7.56)
20.321**
(3.97)
9.200*
(2.31)
-0.829
(0.21)
-88.601*
(2.45)
(2)
-9.354**
(5.63)
-3.575**
(3.02)
-0.621
(0.67)
1.981*
(2.37)
3.131**
(3.96)
1.684
(0.77)
.
(.)
.
(.)
6.114*
(2.46)
-2.796
(0.53)
-32.84
(0.96)
-12.259**
(8.99)
-2.954**
(3.51)
1.363
(1.68)
3.255**
(3.80)
1.869*
(2.53)
-3.999**
(3.67)
-3.219
(0.60)
.
(.)
9.555
(1.58)
1.393
(0.25)
-120.205
(1.69)
-12.887**
(8.92)
-3.789**
(3.36)
0.752
(0.72)
3.060**
(3.45)
2.099*
(2.69)
-3.611**
(3.34)
.
(.)
.
(.)
10.602+
(1.78)
1.311
(0.25)
-95.64
(1.32)
-12.178**
(5.25)
-2.963
(1.34)
1.251
(0.57)
2.069
(0.89)
-1.934
(0.71)
-8.369*
(2.54)
.
(.)
.
(.)
5.856
(0.53)
8.213
(0.72)
-110.903
(0.96)
91.591*
(2.20)
869.909*
(2.41)
39184
0.25
10.238
(0.25)
429.594
(0.99)
9814
0.32
138.324*
(2.33)
1,580.438
(1.67)
29370
0.2
146.197*
(2.43)
1,264.887
(1.32)
23678
0.23
85.172
(0.71)
1,647.410
(1.00)
5692
0.36
Fines
-0.729
(0.61)
6.554**
(6.40)
(3)
(4)
(5)
Prison
Suspended Unsuspended
terms
sentence
sentence
-2.611+
-4.786*
4.359*
(1.76)
(2.55)
(2.18)
7.496**
7.140**
7.409**
(8.49)
(7.28)
(6.35)
See table 6.
To conclude this section, in more direct democratic cantons persons with an unsuspended
sentence appear to be punished more severely, whereas persons receiving probation are more
favorably treated. In contrast, the sub-population of those being fined is not affected. Again,
hypothesis 1 is supported by the data, whereas hypothesis 2 is only partly corroborated.
20
4) Results at the cantonal level
Tables 9 through 11 display the results of the analysis at the cantonal level. In general,
estimation outcomes are fairly similar to the ones based on the individual data. Again, we
observe that higher degrees of cantonal direct democracy are associated with higher means of
prison terms in the subsample of those with an unsuspended prison sentence (Table 9 column
(3)). Equally, we persons with only a suspended prison term are, on average, not affected by
the level of citizen empowerment (Table 9 column (3)). The size of the coefficient indicates
that if the degree of direct democracy changed from the minimum of 1 point to the maximum
of 6 points, duration would rise by about 90 days.
As regards fines, the cantonal mean fine is negatively associated with the degree of direct
democracy, and particularly prominent in the subsample of those who have received a
probation sentence (Table 10 columns (1) and (3)). The estimated coefficients suggest that in
more direct democratic cantons the mean fine is up to 997 (full sample) or 2250 Swiss Francs
(probation sentences) lower than in more representative political cantons. In the subsample
for the unsuspended prison terms and for the fined persons (Table 10 columns (2) and (4)),
however, no significant link between political institutions and the severity of punishment is
detected.
Finally, using the mean of the hypothetical prison term as explanand, stronger institutions
of direct legislation appear to trigger a considerably milder punishment for those with a
probation (Table 11 column (3)), while in the subsamples for those with an unsuspended
sentence or a fine sentence no significant impact is revealed (Table 11 columns (2) and (4)).
According to the results in Table 11, for suspended sentences a change from the minimum to
the maximum level of direct democracy causes a decline in mean prison term length by 43.8
days.
Overall, these estimation results imply that the most strongest deviations from the
equilibrium (compliant) behavior, which are those committed by persons in the subsample of
unsuspended prison terms, are punished more severely under more direct democratic political
regimes: Less severe violations, on the other hand, are treated more gracefully under the rule
of direct democracy, as the mean fine-lowering impact in the subsample of suspended prison
terms shows. For very small deviations, however, again, no impact of political institutions is
detected. In sum, the findings for the aggregate level are strongly consistent with hypothesis 1,
and weakly with hypothesis 2.
21
Table 9: Average duration of prison term, 1994-2001
Direct Democracy
Share of male offenders
Mean age
(Mean age)^2
Cantonal mean fine
Share of suspended sentence prison term sentences
Share of unsuspended prison term sentences
Ideology of government
Log(police force)
Log(population)
Share of commuters
Income inequality
Urbanization
Constant
Observations
Adjusted R-squared
F-test (age var.)
(1)
full sample
2.555**
(2.78)
-11.754
(1.58)
5.733
(1.32)
-0.067
(1.24)
0.001
(0.51)
13.724**
(3.35)
35.414**
(4.84)
1.44
(0.44)
-4.602
(0.77)
-8.23
(0.36)
-25.954
(0.99)
-1.852
(1.56)
0.207
(0.16)
-53.205
(0.19)
207
0.86
2.07
(2)
Suspended
2.464
(1.57)
-3.304
(0.52)
8.019*
(2.33)
-0.091*
(2.19)
0.005+
(1.81)
(3)
unsuspended
18.291**
(3.85)
7.39
(0.78)
0.085
(0.08)
0
(0.00)
0.005
(1.02)
1.128
(0.23)
2.492
(0.42)
-52.238
(1.32)
-19.318
(0.50)
-0.253
(0.14)
0.378
(0.24)
429.406
(0.90)
207
0.77
7.83**
12.387
(0.99)
-9.888
(0.44)
19.27
(0.30)
-132.066
(1.22)
-5.772
(1.49)
-8.935*
(2.12)
-142.745
(0.18)
202
0.73
0.08
Estimation with Newey-West autocorrelation- and heteroscedasticity consistent standard errors. Cantonal and time
fixed effects are included but not reported. A Hausman-Wu test did not reject the exogeneity hypothesis with
respect to the police force variable. Calculations of cantonal means in columns (2) through (4) are based on the
according subsamples.
22
Table 10: Average fines, 1994-2001
Direct Democracy
Share of male offenders
Mean age
(Mean age)^2
mean prison term duration
Share of suspended sentence prison term sentences
Share of unsuspended prison term sentences
Ideology of government
Log(police force)
Log(population)
Share of commuters
Income inequality
Urbanization
Constant
Observations
Adjusted R-squared
F-test (age var.)
See table 9.
23
(1)
(2)
(3)
(4)
full sample only Bussen suspended unsuspended
21.728 -450.071**
-266.293
-199.421*
(2.51)
(0.15)
(3.94)
(1.04)
189.53
234.517
652.827
618.561+
(0.47)
(0.26)
(1.49)
(1.70)
135.671 -404.351*
72.002
14.46
(1.20)
(2.54)
(0.57)
(0.29)
-1.359
5.511**
-0.696
-0.264
(0.96)
(2.63)
(0.46)
(0.49)
2.775
12.283**
4.134
(0.55)
(3.40)
(1.10)
-125.751
(0.66)
-134.226
(0.40)
123.145
751.895*
-241.682
253.723
(0.97)
(2.09)
(1.05)
(0.94)
66.604
-625.218
-85.148
545.166
(0.37)
(0.70)
(0.28)
(1.65)
-1,607.373+ -4,525.843
-257.663 -4,790.989*
(1.77)
(1.22)
(0.19)
(2.28)
2,267.895+
8,315.368 5,434.345*
2,435.246
(1.68)
(1.65)
(2.00)
(0.89)
57.332
207.968
125.029
20.022
(0.88)
(1.05)
(1.26)
(0.17)
-53.048
-233.408
-15.226
-122.989
(0.88)
(1.21)
(0.20)
(1.05)
16,217.381 83,490.310
965.685 58,743.515*
(1.60)
(1.56)
(0.06)
(2.39)
207
201
207
202
0.79
0.68
0.79
0.74
6.13**
3.74*
1.95
1.29
Table 11: Average duration of hypothetical prison term
(1)
(2)
(3)
(4)
full sample only fines suspended Unsuspended
Direct Democracy
-2.547
0.38 -8.756**
10.777
(1.32)
(0.24)
(2.97)
(1.55)
Share of male offenders
-8.001
13.806+
5.957
26.337+
(0.53)
(1.91)
(0.39)
(1.86)
Mean age
9.528
-1.898**
10.995
0.556
(1.42)
(2.93)
(1.63)
(0.26)
(Mean age)^2
-0.105
0.027**
-0.118
-0.009
(1.27)
(3.35)
(1.46)
(0.37)
Share of suspended sentence prison term sentences
11.236
(1.55)
Share of unsuspended prison term sentences
30.118*
(2.24)
Ideology of government
7.906+ 11.754**
3.33
21.618
(1.91)
(2.83)
(0.43)
(1.36)
Log(police force)
-3.62
-6.27
3.36
7.202
(0.58)
(0.68)
(0.49)
(0.35)
Log (population)
-52.468
-81.341*
-51.971
-155.254+
(1.48)
(2.31)
(0.80)
(1.76)
Share of commuters
37.196
41.657
112.723
-39.957
(0.82)
(0.81)
(1.39)
(0.29)
Income inequality
-0.85
4.285+
1.209
-6.108
(0.40)
(1.67)
(0.33)
(1.25)
Urbanization
-1.098
-0.072
1.291
-14.500**
(0.48)
(0.04)
(0.42)
(2.71)
Constant
403.303 1,050.615*
371.309 1,997.660+
(0.93)
(2.15)
(0.48)
(1.96)
Observations
207
201
207
202
Adjusted R-squared
0.78
0.78
0.76
0.68
F-test (age var.)
6.63**
8.57**
8.38**
0.26
See table 9.
7 Conclusion
This paper tested the impact of political institutions on sentencing behavior of courts.
Based on Frey (1997), it was conjectured that the quality of the relation between citizens and
their government is linked to the type of political system, and based on Feld and Frey (2002)
that the quality of this relation leads to differences in the sentencing behavior of courts. These
thoughts lead to two contrasting hypotheses: first, in more direct democratic systems a more
severe punishment of more serious infringements shall be observed, and second, minor
infringements shall be punished milder than in more representative political systems.
24
Using data on about 40’000 Swiss first offenders of drink-driving from 1994 to 2001 and
exploiting the variation in citizen empowerment in the 26 Swiss cantons, these hypotheses are
tested both at the individual and (in aggregated form) at the cantonal level. All regressions
outcomes strongly support hypothesis 1, indicating that in more direct democratic cantons
more serious offenses leading to prison terms are more severely punished, or ‘priced’ higher
in a Beckerian sense (1968). The second hypothesis of a significantly milder punishment of
minor infringements, however, was observed only for medium forms of non-compliance, that
is for persons on probation. As regards the smallest deviations leading to fining only, however,
no punishment-reducing impact of direct democracy was observed. Overall, however, the
evidence presented in this paper rather confirms than rejects the two hypotheses.
At this point it should be noted that the different forms of punishment were ranked
according to their severity on purely legalistic grounds, that is based on the Swiss Criminal
Law. According to an average person’s intuition, however, it is the fine, and not the probation,
which constitutes the second severe form of punishment, because it sets an additional
financial constraint. In contrast, the suspended sentence does not impose any financial burden
on the convicted. Based on this different ranking, the severity-lowering impact of citizen
empowerment would, indeed, occur only for the mildest form of punishment (the probation),
while the medium form, the fine, would stay unaffected. Such an interpretation of the
estimation outcomes would equally strongly support hypothesis 1 and hypothesis 2.
Different types of punishment incur different costs on the state, as Becker (1968) already
noted: while fines trigger some negligible administrative costs only, actual imprisonment is
highly costly to the state, while probation is probably attached with some administrative and
monitoring costs. Fines, however, are usually easy to levy and handle. So it might well be that
even in more direct democratic cantons the government is not willing to forgo such ‘easy’
revenue, particularly in times of economic hardship and economization. Since persons subject
to a fine form part of about 25 percent of all offenders, decreasing the amount of fine might
lead to substantially financial ‘losses’. In light of such a costs-benefit analysis, however, the
sizeable length of prison term rising impact of direct democracy on persons actually
institutionalized cannot be emphasized enough. This result indicates that, indeed, in direct
democratic canons additional social costs must have been generated by such severe violations
if it is socially optimal to bear these additional outlays for a longer imprisonment. Such
25
additional social costs are, most probably, the negative externalities caused by the offense,
that is the potential crowding out civic virtues of the still compliant third parties.
26
References
Becker, G.S. (1968), Crime and Punishment: An Economic Approach, Journal of Political
Economy 76 (1968), pp. 169 – 193.
Feld, L.P: and B.S. Frey (2002), Trusts Breeds Trust: How Taxpayers are Treated, Economics
of Governance 3 (2002), pp. 87-99.
Feld, L.P: and B.S. Frey (2003), The Tax Authority and the Tax Payer: an Exploratory
Analysis, University of Marburg, unpublished manuscript.
Fischer, J.A.V. (2005), The Impact of Direct Democracy on Crime: Is the Median Voter
Boundedly Rational?, University of St. Gallen, discussion paper, August 2005, No. 200514.
Frey, B.S. (1997), A Constitution for Knaves Crowds Out Civic Virtues, The Economic
Journal, 107 (1997), pp. 1043-1053.
Frey, B.S. and B. Torgler (2004), taxation and conditional cooperation, CREMA Working
paper 2004-20, Center for research in Economics, Management and the Arts, Basel,
Switzerland.
Moulton, Brent (1990), An Illustration of a Pitfall in Estimating the Effects of Aggregate
Variables in Micro Units, Review of Economics and Statistics, 72 (1990): pp. 334-338.
Pommerehne, W.W., and H. Weck-Hannemann (1996), Tax Rates, Tax Administration and
Income Tax Evasion in Switzerland, Public Choice (88) 1996, pp. 161-170.
Robinson, W.S. (1950), “Ecological Correlations and Behavior of Individuals”, American
Sociological Review 15 (1950), American Sociological Review 15, pp. 351-357.
Weck-Hannemann, H. and W.W. Pommerehne (1989), Einkommenshinterziehung in der
Schweiz: Eine empirische Analyse, Schweizerische Zeitschrift für Volkswirtschaft und
Statistik (4) 1989, pp. 515-555.
27
Pommerehne, W.W., Hart, A., and Frey, B.S. (1994), Tax Morale, Tax Evasion and the
Choice of Policy Instruments in Different Political Systems, in: Pommerehne, W.W. (ed.),
Public Finance and Irregular Activities, Proceedings of the 49th Congress of the
International Institute of Public Finance, Berlin 1993, Supplement to the Public Finance
49 (1994), pp. 52-69.
Schaltegger, Ch. (2001), The Effects of Federalism and Democracy on the Size of
Government: Evidence from Swiss Sub-National Jurisdictions, ifo Studien 47 (2001), pp.
145 -162.
Torgler, B. (2005), Tax morale and direct democracy, European Journal of Political Economy
21, (2005), pp.525-531.
28
Appendix
A1: Frequency of alcohol consumption according to language region between 1992 and 2002 (in %)
Daily
Several times
1 – 2 times
Less than
1 to 2 times
per week
per week
weekly
1992 1997 2002 1992 1997 2002 1992 1997 2002 1992 1997 2002
Switzerland
20
16
15
11
11
10
28
29
31
26
26
22
German-speaking part
16
13
12
13
12
12
30
31
33
26
28
24
French-speaking part
28
23
19
7
9
8
25
26
26
25
23
20
Italian-speaking part
32
28
26
6
6
5
11
16
15
20
21
18
Source: Calculations based on the Schweizerische Gesundheitsbefragung / l’enquête Suisse sur la santé 1992, 1997
and 2002; n = 14321, 11972, and 17876, respectively
29
Table A2: Influence of direct democracy on type of main sentence
Type of sanction
Fine sanction
0.078
-0.27
(1.18)
(1.34)
Male
0.223**
-0.201**
(9.58)
(3.67)
Age 18-25
-0.396**
0.970**
(8.41)
(11.15)
Age 26-35
-0.037
0.419**
(0.95)
(5.16)
Age 36-45
0.033
0.103
(0.92)
(1.18)
Age 46-55
0.046
-0.009
(1.32)
(0.11)
Age 56-65
-0.019
0.119
(0.52)
(1.43)
Age 66-70
-0.11
0.187
(1.65)
(1.23)
Age above 70
-0.222**
0.459**
(3.24)
(3.45)
Ideology of government
-0.482**
1.319**
(2.82)
(2.86)
Log (ordinary Policemen)
-0.133
0.449
(0.73)
(0.85)
Log (population)
3.47
-7.898
(1.55)
(1.33)
Motorized commuters
-0.798
3.559
(0.41)
(0.60)
39184
Observations
39184
0.0674
Pseudo R2
0.0297
-20566.891
Log PseudoLikelihood Full Model
-46385.613
-22054.293
Log PseudoLikelihood Intercept Only
-47804.202
Standard errors adjusted through clustering by cantons. Cantonal and time fixed
effects are included but not reported. **, *, + indicate significance at the 1, 5
and 10 percent levels, respectively. Absolute values of z-statistics in
parentheses.
Column (1): Ordered probit estimation, Dependent variable ‘type of sanction’ is
categorical with the following categories: (1) Fine solely, (2) suspended prison
term solely (3) suspended prison term combined with fine (4) unsuspended
prison term solely (5) unsuspended prison term combined with fine. Column
(2): Probit estimation. Dependent variable ‘fine sanction’ is dichotomous.
Direct democracy
30