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2019 | Buch

The Paradox of Punishment

Reflections on the Economics of Criminal Justice

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This book explores the insights that can be gained by looking at the criminal justice system from an economic point of view. It provides an economic analysis of the institutional structure and function of the criminal justice system, how its policies are formulated, and how they affect behavior. Yet it goes beyond an examination of specific policies to address the broad question of how law influences behavior. For example, it examines how concepts such as the possibility of redemption affect the decisions of repeat offenders, and whether individual responsibility is (or should be) a pre-requisite for punishment. Finally, the book argues that, in addition to the threat of criminal sanctions, law inculcates principles of acceptable behavior among citizens by asserting that certain acts are “against the law.” This “expressive function” of law can influence behavior to the extent that at least some people in society are receptive to such a message. For these people, the moral content of law has more than mere symbolic value, and consequently, it can expand the scope of traditional law enforcement while lowering its cost. Another goal of the book is therefore to use economic theory to assess this dualistic function of law by specifically recognizing how its policies can both internalize an ethic of obedience to the law among some people irrespective of its consequences, while simultaneously threatening to punish those who only respond to external incentives.

Inhaltsverzeichnis

Frontmatter
Chapter 1. Prologue: The Paradox of Punishment
Abstract
This chapter sets the stage for the remainder of the book by first describing the “punishment-as-price paradigm,” which underlies the economic approach to criminal justice. This concept is based on the idea that a crime is essentially a form of exchange, albeit involuntary, and criminal punishment is the price of that exchange, which an offender, once apprehended and convicted, must pay. The chapter emphasizes, by means of a simple law enforcement “game,” the sequential nature of crime and punishment, which necessarily raises questions about the credibility on the part of law enforcers regarding the imposition of punishment. This issue establishes a theme, referred to as the “paradox of punishment,” that runs throughout the book.
Thomas J. Miceli

Competing Economic Theories of Crime

Frontmatter
Chapter 2. The Social Cost of Crime: Deterrence
Abstract
This chapter lays out the economic theory of crime due to Gary Becker. Generally, this is a normative theory because it specifies a particular objective for the criminal law; namely, to minimize the costs of crime, consisting of the net harm to victims plus enforcement costs. As such, it does not necessarily strive to describe how criminal justice policy is actually structured, but how it should be structured to achieve the stated goal in the most efficient manner. The chapter reviews the principal policy prescriptions that come out of the model and compares them to actual practice. Particular attention is paid to the divergences, notably the prescribed reliance on fines over prison to the maximum extent possible, and the desirability of “probability-scaling” of punishments.
Thomas J. Miceli
Chapter 3. Crime As Exchange: Retribution
Abstract
This chapter explores an alternative economic theory of crime based on the work of Richard Adelstein. Unlike the Becker model, it argues that the criminal process operates as part of the “exchange order” of society. The goal of punishment is, therefore, to mediate criminal exchanges, defined to be involuntary transfers of legal rights between offenders and their victims. Within this setting, criminal liability is specifically aimed at “completing the exchange” by imposing proportional punishment on offenders. That is, offenders pay for the crime that they committed, while at the same time the public nature of punishment implicitly compensates society for the moral costs of the crime. The guiding principle of this system is retribution, or corrective justice on a case-by-case basis, rather than deterrence.
Thomas J. Miceli

The Institutional Structure of Punishment

Frontmatter
Chapter 4. Sentencing Guidelines and Judicial Discretion: Balancing Deterrence and Retribution
Abstract
This chapter examines the interplay between legislatures, which enact sentencing guidelines ex ante, and judges (courts), which implement actual sentences ex post, subject to legislative guidelines. The hypothesis is that legislatures pay at least some attention to the goal of deterrence and so tend to enact tough-on-crime policies as signals to would-be offenders that law-breaking will result in harsh punishment. In contrast, judges confront actual offenders after the fact and so are more inclined to impose what they perceive to be “fair” punishments based on the circumstances of the case, subject to any binding constraints imposed by the legislature. The theme of the chapter is that the interplay between legislatures and judges reflects an evolving balance between the competing goals of deterrence and retribution.
Thomas J. Miceli
Chapter 5. Plea Bargaining: Negotiated Justice
Abstract
This chapter introduces another player in the criminal process, the prosecutor, who is instrumental in the determination of actual criminal punishments through the practice of plea bargaining. Under plea bargaining, which is a literal negotiation between prosecutors and defendants over criminal sentences, prosecutors exercise considerable discretion regarding both what charge to bring and what sentence to offer. The vast majority of criminal convictions in the United States are achieved in this way. The chapter reviews economic theories of this practice and emphasizes the trade-off between the resulting savings in trial costs and the risk of wrongful conviction. It concludes by examining how plea bargaining affects the goals of deterrence and corrective justice.
Thomas J. Miceli

Other Objectives of Punishment

Frontmatter
Chapter 6. Repeat Offenders: Marginal Deterrence and Redemption
Abstract
This chapter extends the economic model of crime to include a dynamic element—given the reality that many criminals are repeat offenders. Several new issues arise in this context, including marginal deterrence, the possibility of redemption (or rehabilitation) of offenders, whether or not an offender’s criminal record should be considered in setting punishment for a current crime, and the role of prison in incapacitating dangerous repeat offenders. The parable of the Prodigal Son from the New Testament serves as a thematic point of departure for much of the discussion.
Thomas J. Miceli
Chapter 7. Individual Versus Collective Responsibility: It Takes a Village
Abstract
This chapter considers the link between individual responsibility and punishment. Although such a link would seem to be an essential aspect of any morally acceptable theory of criminal punishment, it is the case that in ancient times, collective responsibility was a common practice, as exemplified by retaliation of victims and their sympathizers against an offender’s family or community. Even today, some vestiges of that ethic are evident in tort doctrines like vicarious liability and joint and several liability. This chapter explores the possible justifications for this practice within the context of the economic theories laid out in prior chapters with emphasis both on explaining the historical trend away from collective responsibility, and in seeking to understand why some examples of its use persist today.
Thomas J. Miceli
Chapter 8. The Limits of Punishment: Of Angels and Bad Men
Abstract
The chapter explores the limits of criminal punishment as a means of regulating conduct by introducing the role of law in communicating unacceptable behaviors to members of society. This “expressive function” of law can expand the reach of law if least some members of the population are responsive to the idea that disobeying the law is itself wrong or immoral, regardless of the consequences. The chapter examines the implications of this moral dimension of law for the optimal scope of rulemaking and the structure of punishments. It turns out that an increase in the fraction of reflexive law-abiders may make it desirable to expand or contract the scope of law; that is, morality can either be a complement or substitute for the threat of punishment.
Thomas J. Miceli

Conclusion

Frontmatter
Chapter 9. Epilogue: What Have We Learned?
Abstract
This chapter summarizes the conclusions from the prior chapters and weaves them into a coherent economic perspective on the goals and effects of criminal punishment. The discussion not only emphasizes the ability of economic theory to describe the structure and function of legal institutions as well as the decisions of rational offenders, but also cautions that an economic approach to criminal justice is dependent on the values that a given society seeks to pursue, which is ultimately a question of philosophy and politics.
Thomas J. Miceli
Backmatter
Metadaten
Titel
The Paradox of Punishment
verfasst von
Prof. Thomas J. Miceli
Copyright-Jahr
2019
Electronic ISBN
978-3-030-31695-2
Print ISBN
978-3-030-31694-5
DOI
https://doi.org/10.1007/978-3-030-31695-2