Economics of Criminal Law

1. Economics of Criminal Law

2. Inadequacy of Tort Law • Perfect compensation may not be possible • Physical harms • Limited wealth • Tort liability protects an interest but not a right. • For example the law should encourage the right of voluntary exchange. • Perfect compensation may not deter criminal behavior • Some acts may go undetected. • Repeated behaviors may exhibit psychological commitment and call for stronger sanctions

3. How criminal law differs from tort law • The criminal intended to do wrong, whereas some civil wrongs are accidental. • The harm done by the criminal was public as well as private. • The plaintiff is the state, not a private individual. • The plaintiff has a higher standard of proof in a criminal trial than a civil suit. • If the defendant is guilty, then he or she will be punished.

4. Types of crime • Vandalism • Intentional harm to the victim with no material benefit to the wrongdoer • Robbery is a welfare transfer • Transfer of material wealth from the victim to the criminal • Unlike a market trade the criminal need not value the good more highly than the victim • May be accompanied by emotional or physical harm • Regulatory or victimless crime • Harm to the economic or social system • Third party effects

5. Cost of Violence • Violence causes approximately 50,000 deaths each year and results in over 2.5 million injuries. • Homicide and suicide are the second and third leading causes of death, respectively, among Americans aged 15-34. • Hospital emergency departments treat an average 55 people for injuries every minute. • The average cost per homicide was $1.3 million in lost productivity and $4,906 in medical costs. • The average cost per case for a non-fatal assault resulting in hospitalization was $57,209 in lost productivity and $24,353 in medical costs. Source: Center for Disease Control and Prevention (2000 prices)

6. Are Criminals Rational? • Chicago economist Steven Levitt and Harvard sociologist SudhirVenkatesh studied a criminal gang in Chicago (1991) • Foot soldiers who sell drugs on the street make about $3.50 an hour • Neighborhood gang leaders can make $65 an hour • Gross margins for crack are 80 percent • Talks Steven Levitt: Why do crack dealers still live with their moms?

7. What crime pays A drug gang’s monthly income statement *Membership dues are paid by peripheral gang members who often don’t sell drugs. Note: These figures are based on a 42-month period beginning in July, 1991. Source: Levitt and Venkatesh

8. Relevant Question • What acts should be considered crimes? • What is the optimal punishment for a crime?

9. Economic Theory • An act should be criminal if punishing the act increases welfare. • Crime should be punished to the extent it maximizes welfare. • Retribution is not part of economic theory

10. Characteristics of Criminal Law • Criminal intent • Public harm • Standard of proof

11. Criminal intent • Intentional harm lies beyond recklessness • guilty mind (mens rea) • An intent to achieve an illegal result • Do mothers that kill their babies have a guilty mind? • First degree murder requires premeditation

12. Public harm • Crime harms the public; therefore, the public prosecutes. • Victimless crimes are possible. The victim is society. (Gambling, drugs, counterfeiting) • Failed crimes can be punished because they cause fear.

13. Standard of proof • Beyond a reasonable doubt is a high standard of proof • Assumes that convicting an innocent person is worse than failing to convict a guilty person. • Keeps an onerous government in check

14. Punishment • Purposes • Justice • Deterrence • Types • Corporal and capital punishment • Imprisonment • Probation • Fines • Makes the injurer worse off, without benefiting the victim

15. What acts should be punished? • Acts should be punished when the aim is deterrence. Acts should be priced when aim is internalization. • The aim should be deterrence when: • Perfect compensation is impossible • Rights are to be protected, and not just interests • Protection from interference, trespass • Right to voluntary exchange • Enforcement errors systematically undermine liability

16. Economic Goal of Criminal Law • Criminal law should minimize the social cost of crime, which is equal to the sum of the harm it causes and the costs of preventing it. • Should the criminal’s benefit be included in the analysis? • Marginal social cost of prevention = marginal social benefit of prevention

17. Optimal Deterrence

18. Crime and Punishment • Seriousness of punishment should be positively related to seriousness of offense • Punishment becomes more server as crime becomes more serious

19. Embezzlement

21. Mathematics of Rational Crime • f = punishment • x= seriousness of crime • y= payoff • Max y(x) - p(x)f(x) • Solution y’ = p’f + pf’ Criminals marginal benefit = criminals marginal expected cost of punishment

22. Why not apply the maximum penalty for minor crimes? • The cost of applying the penalty may not be worth it • There is nothing to deter one from committing a major crime after they have committed a minor crime

23. Optimal Means of Deterrence • Choice between enforcement and punishment • Socially optimal combination is the one that costs less for a given level of deterrence • High fines and low probability of punishment can yield the same expected value as low fines and high probability of punishment • Assuming ability to pay high fines would be optimal

24. Gary Becker - Are Criminals Risk Adverse? • Gary Becker • Expected utility will differ from expected value when the criminal is risk adverse or a risk taker • For risk takers increase in p would reduce the expected utility, and thus the number of offenses, more than an equal percentage increase in f • For risk averters an increase in f would have the greater than an equal percentage increase in p

25. David Friedman – Why do we imprison anyone? • Bullets and rope are cheap, so the total cost of an execution consists almost entirely of the cost paid by the criminal-his life • Whenever a criminal receives a life sentence, we flip a coin. Heads he goes free; tails we hang him • The severity of the crime can determine the probability of death

26. What’s wrong with this proposition? • Nothing, if the objective is efficiency • Other considerations • Its irreversible • We may be reluctant to use it because it is too efficient • Governments may abuse the system (Germany)

27. Deterrence Hypothesis • Increase in expected punishment causes a significant decrease in crime • Supply of crime is elastic with respect to punishment • Alternative view is that criminals do not weigh benefits and costs • Economic opportunities should reduce crime

28. Economics of Prison Time • The present value of future year in prison declines as the sentence increases. • One additional policemen is equal to the cost of about 3 years in prison. • Is three strikes and your out efficient? • Mandatory extended sentence for three serious criminal offenses

29. Optimal Sentencing • Longer sentences deter crime, increase prison costs and reduce other social costs • Optimal sentence should depend on marginal benefit and marginal cost

30. Crack Cocaine vs. Power Cocaine • Mandatory minimum of 5 years in prison for possession of 5 grams of crack cocaine, the approximate weight of two pennies • Controlling for like amounts of cocaine, in 2000, crack defendants convicted of trafficking in less than 25 grams of cocaine received an average sentence that was 4.8 times longer than the sentence received by equivalent powder defendant. The ratio between average crack and powder sentences for defendants convicted of trafficking in between 15 and 49.9 kilograms of cocaine was 2.4:1. • For defendants with the lowest criminal histories, the ratio between average crack and powder sentences for the lowest amounts of drug 8.3:1. • The average sentence for trafficking in cocaine powder in the year 2000 was 74 months; the median sentence was 57 months. For crack cocaine traffickers, the average sentence was 117 months; the median sentence was 96 months." • Characteristics of users • Crack defendants were also twice as likely to carry a weapon • Crack cocaine defendants were more likely than cocaine powder defendants to have a criminal history. • Reductions in crack offense penalties would primarily affect Black defendants. Source: U.S. Department of Justice

31. Economics of Ethnic Profiling • Would profiling exist in an efficient system of justice? • How should the optimal level of profiling be determined? • Should efficiency be the objective? • Profiling that lacks a scientific basis is likely to waste resources • May want to restrict analysis to cases in which there is rational foundation

32. A Marginal Analysis x = dollars of search activity C = dollar benefit to society of an apprehension

33. A Marginal Analysis Optimal level of search activity is where the marginal cost of search is equal to the marginal benefit of apprehension With market segmentation of criminals A dollar spent in each market segment should provide the same marginal benefit

34. With market segmentation • If an additional dollar of expenditure on searching A creates a larger marginal increase in apprehension, then less search expenditures on B and more on A. • Marginal increase in probability of apprehension should be identical. • Does not mean that • Probability of apprehension on both communities will be equal. • Total expenditures on search costs in both communities will be equal.

35. Profiling Example

36. Profiling Considerations • If searches of one group become more efficient with experience there may be a tendency to concentrate resources on that group • Profiling based on a taste for discrimination increases apprehension costs • What if the selection characteristics are in control of the profiled group? (dress) • The costs of profiling are concentrated on the profiled group • pay each innocent person we search (Airports, drug stops, DWI stops) • Moral hazard