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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.
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These risks are also controlled through tort law, as victims of an accident have the right to sue for damages. See the further discussion of the relationship between tort law and criminal law in Chap. 3.
It is noteworthy that all of these quotes embody the concept of “marginal deterrence,” which we will return to later in this chapter in the comparison of theory and practice, and at length in Chap. 6.
Along these lines, Katz ( 1987) explores some of the pitfalls one encounters when trying to ascertain actual intent on the part of wrongdoers.
See, for example, the survey by Levitt and Miles ( 2007).
See the further discussion of this point in Chap. 8, where we use speed limits as an example of the problem of choosing the optimal scope of the law.
See, for example, Klevorick ( 1985), who argues that criminal law is designed to protect the “transaction structure”; Cooter ( 1984), who argues that criminal law imposes sanctions for forbidden acts rather than prices for permitted acts; and Brennan and Buchanan ( 1985), who argue that criminal punishment is not properly interpreted as a price.
This includes the direct cost to the victim plus the broader costs felt by sympathizers with the victim and anyone else who suffers moral outrage. The measurement of the cost of crime will be discussed in greater detail in Chap. 3.
One might object that a better outcome could be achieved by raising the prison term high enough that both offenders are deterred ( t ≥ 7 will do it), in which case net welfare is zero. This assumes, however, that a sufficiently high threatened prison term will deter all offenders. While true in this example, in reality there will always be some offenders who commit the act, whether because their perceived gain is very high or because they are temporarily or permanently irrational. In that case, the cost of punishing them would be very high and hence socially undesirable.
This assumes offenders are risk neutral.
I am necessarily abstracting from the many extensions and elaborations of the standard Becker model that have been offered in the literature. The basic prescriptions described here, however, have proven quit robust to these extensions.
See Polinsky and Shavell ( 1991).
The issue is somewhat more subtle than this logic suggests because marginal deterrence can also be achieved by increasing the probability of apprehension for more severe crimes. See, for example, Shavell ( 1992).
But see Wickelgren ( 2003) for an argument justifying the use of prison anyway.
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- The Social Cost of Crime: Deterrence
Thomas J. Miceli
- Chapter 2
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