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As good be hanged for a sheep as a lamb

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Steve Sailer has an interesting post on how incentives implicit in the criminal law do have a substantial impact on what criminals do.

Firstly he notes a recent article in the Journal of Legal Studies (a Law and Economics journal) by Marvell and Moody (2001) which demonstrates, unsurprisingly, that the US Three Strikes policy encourages criminals to murder their witnesses. Here is the abstract for the article:

Three-strikes laws provide very long prison terms for certain criminals with prior convictions of serious violent crimes. It is likely that the laws increase homicides because a few criminals, fearing the enhanced penalties, murder victims and witnesses to limit resistance and identification. With a state-level multiple-time-series design, we find that the laws are associated with 10-12 percent more homicides in the short run and 23-29 percent in the long run. The impact occurs in almost all 24 states with three-strikes laws. Furthermore, there is little evidence that the laws have any compensating crime reduction impact through deterrence or incapacitation.

As the saying goes, ‘As good be hanged for a sheep as a lamb‘.

Secondly, Sailer points to another nice piece by William Tucker. Tucker argues for the death penalty because he thinks it has a deterrence effect. I don’t doubt that it does but as a matter of principle I object to the State being given such powers in the regular conduct of domestic law (I am willing to make an exception for extraordinary one-shot circumstances e.g. the Nuremberg trials or major terrorist crimes though in these cases the defendants may be the least responsive of all to such penalties) because error in the application of the death penalty is non-compensable.  However, the more interesting bit of Tucker’s article is where he finds early formulations of the economic incentives approach to criminal law – and in particular, the need for gradations in penalties and the efficiency rationale for proportionality of punishment to avoid perverse incentives like those arising from the Three Strikes experiment – in Montesquieu. Writing about the historical use of the death penalty, Tucker notes:

Overzealous use of the death penalty clouded the issue. Hanging people for picking pockets produced unwanted incentives in the pickpockets. From the Enlightenment on, reformers pointed this out. “It is a great abuse among us to condemn to the same punishment a person who only robs on the highway and another who robs and murders,” wrote Montesquieu in The Spirit of the Laws (1748). “In China, those who add murder to robbery are cut in pieces: but not so the others; to this difference it is owing that though they rob in that country they never murder. In Russia, where the punishment for robbery and murder is the same, they always murder. The dead, they say, tell no tales.”

However, the issue is further clouded by this interesting paper co-authored by intellectual powerhouse and occasional Catallaxy commenter David Friedman which is worth reading in full. Essentially he finds that the intuition about gradation of penalties isn’t that clear cut. Using the example of a law that imposes the same punishment for stealing sheep and lamb, he notes in the conclusion to this paper:

The benefit of deterring a thief from stealing a lamb is less when the result may be that he steals a sheep instead, which is an argument for a lower punishment. But the existence of sheep to be stolen may, by reducing the number of thieves who steal lambs, reduce the cost of catching and punishing them, which lowers the cost of imposing any particular level of effective punishment and raises the optimal punishment. When we add in the distinction between the number of thieves on the margin and in total and note that including sheep in the flock may affect the two numbers in different ways, the situation becomes complicated enough to make a purely verbal analysis difficult. The result of a more formal treatment turns out to be ambiguous. While there is some presumption that the possibility of the more serious crime will lower the optimal penalty for the less serious, the opposite effect is possible.

Written by Admin

June 4, 2006 at 9:40 am

Posted in Uncategorized

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