Legal Issues of Randomized Experiments on Sanctioning

Abstract

In 1981, the Federal Judicial Center proposed guidelines for balancing risks of experimentation against their supposed benefits. The ethical rules were supposed to be within the scope of American legal and constitutional justification. These guidelines would not fulfill the same criterion in Germany, especially if risks to the individual are weighed against benefits toward the society. Randomization in criminal law cannot be justified by the constitutional principle of freedom of research or by the need to gain empirical knowledge about the effectiveness of sanctions. Unequal treatment in randomized designs can only be justified if randomization is permitted for reasons other than experimentation and if the individuals give their free and informed consent. The principle of informed consent must be extended from a procedural to a material content, which guarantees that participants are not forced to take part in an experiment.