People Want Optimal Deterrence – Just a Little Bit
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Michał Kłusek
Abstract
Psychological studies of punitive intuitions demonstrate that the economic theory of optimal deterrence is fundamentally counterintuitive. We punish in response to the moral blameworthiness of the crime with little regard for the consequences. But it is less clear whether optimal deterrence is acceptable. When the law is not accepted by the community it governs, its crime control efficiency suffers. If optimal deterrence is wholly unacceptable, then it is counterproductive as a guide to penal policy. I administered an online survey to university students to examine the acceptability of different applications of optimal deterrence theory. The participants rejected nearly all of the applications, with the sole exception of an increase in punishment severity on the general policy level. They were also more willing to accept smaller, rather than bigger, changes of punishment severity; and increases, rather than decreases of punishment. The results suggest penal policy may be slightly adjusted in the direction suggested by economic analysis of criminal law without a major loss to the law’s moral credibility – especially if the adjustment involves an increase in punishment magnitude.
Funding source: Narodowe Centrum Nauki
Award Identifier / Grant number: 2017/27/N/HS5/02088
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Research funding: The research was financed by National Science Centre of Poland (2017/27/N/HS5/02088).
Description of the Theory of Optimal Deterrence
The economic theory of punishment (also known as the theory of optimal deterrence) assumes that we should treat criminals as if they were rational people who analyse the expected costs and benefits before committing a crime. If the expected benefits exceed the expected costs, they commit the crime.
The expected costs of a crime amount to the expected punishment multiplied by the probability that the criminal will be punished. The higher the punishment (or the probability), the higher the expected cost of crime.
Punishment deters effectively when the expected cost associated with the crime exceeds the expected benefits.
Thus, when the probability of punishment falls, we can achieve the same level of deterrence by increasing the punishment. Also, if the probability of punishment rises, we can achieve similar levels of deterrence with lower punishment.
Some people agree and some disagree with this theory. Those who disagree claim, among other things, that punishment ought to be just – the punishment that the criminal deserves – regardless of what the probability of punishment is. Others claim that the theory is completely unrealistic: People are not rational in this way or they do not have the necessary information to accurately judge the expected costs and benefits.
Those who support this theory argue that, among other things, the economic theory of punishment tells us that penal policy ought to assume that criminals are rational – whether or not in each particular case the criminals assess expected costs and benefits. They should be treated as if they did that. Also, they claim that people normally take the expected costs and benefits of their actions into account in their daily lives – and the decisions to commit a crime should not be treated differently.
Scenarios 2 and 4
Scenario 2 (Penal Policy Decrease)
The Federal Railroad Administration (FRA) is responsible for the regulation of railway transport in country Y. Suppose that the FRA has recently employed additional agents responsible for detecting and punishing railway safety violations. Suppose that you are the head of the FRA, and that your second-in-command suggested the following solution: “As a result of the increase in the number of agents, the detection rate of security violations increased. We can ensure the same (and sufficient) level of deterrence using less severe punishment. I suggest that we decrease the severity of punishment for security violations.” Suppose too, that the decrease of severity of punishment is perfectly legal in country X.
Scenario 4 (Judge Decreasing Punishment by 90%)
In country X, Mr. Smith was found guilty of credit fraud. In situations like this, the judge would normally order a fine of $10000. This time, however, the judge realized that recently the detection rate of credit fraud increased 10 times (by 900%). Therefore, he recognized that a fine of $1000 (i.e. lower by 90%) would be enough to achieve the same (sufficient) level of deterrence due to the higher probability of punishment. Based on this reasoning, he ordered a fine of $1000. Suppose that the judge’s decision was perfectly legal in country X.
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Articles in the same Issue
- Frontmatter
- Articles
- Laudatio: Ariel Porat
- The Dark Side of Insurance
- Increase in Mortality Rates of African-American Women Following Mandatory Arrest Laws: A Study in Unintended Effects
- Legal Problems and Solutions in Stablecoins: A Multi-Disciplinary Approach Applied to Euro Stablecoins
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