Chapter 9

The Economics of Crime

Key Points

•         The economic theory of crime is primarily concerned with the deterrent effects of criminal punishment. This approach rests on the assumption that at least some potentials offenders act rationally when contemplating criminal activity.

•         Several arguments have been proposed to justify public (as opposed to private) enforcement of criminal law, including the fact that criminals, because they intentionally cause harm, seek to avoid detection; the existence of scale economies in detection and apprehension; and the fact that crimes cause public as well as private harm.

•         Criminal sanctions also discourage individuals from transforming property rules into liability rules—that is, from taking property (theft) rather than engaging in market exchange. This argument incorporates criminal law into the general transaction structure outlined in Chapter 6.

•         A rational offender commits a crime if the gain from the illegal act exceeds the expected cost. The expected cost equals the probability of apprehension times the cost of the sanction, which consists of a fine and/or prison.

•         When the probability of apprehension is fixed, the optimal fine equals the harm imposed by the crime divided by the probability of apprehension.

•         When fines and imprisonment are both available, a fine should be used up to the limit of the offender’s wealth, and imprisonment should only then be imposed if additional deterrence is cost-justified. This reflects the fact that raising a fine is costless whereas imposing a prison term is costly.

•         When the probability of apprehension is a choice variable, the fine should again be set equal to the offender’s wealth, with p only raised as high as necessary to achieve the desired level of deterrence. When the fine, prison, and probability of apprehension are all variable, the fine should continue to be set at the offender’s wealth, with the two remaining variables chosen to balance their marginal costs and benefits.

•         The principle that fines should always be maximal—a fundamental prescription of the economic model of crime—is not generally consistent with observed practice. Several possible reasons may account for this, including offender efforts to conceal their wealth; aversion to excessive punishments in relation to the harm imposed (the “proportionality norm”); equal treatment of rich and poor; and consideration of marginal deterrence.

•         Repeat offenders are generally punished more severely than first-time offenders, but economic theory has difficulty explaining this practice. One possible explanation is that the employment opportunities of convicted offenders are diminished due to the associated stigma, thus necessitating a harsher punishment to deter them from committing further crimes. Another is to incapacitate those who reveal themselves to be dangerous and undeterrable offenders for increasingly longer periods of time.

•         There is considerable empirical evidence supporting the basic predictions of the economic model of crime. Most fundamentally, the evidence supports the notion that rational offenders respond to increases in expected punishments.

•         The death penalty is the most severe, and most controversial form of punishment. After a significant decline in the late 60’s and early 70’s, the number of executions in the U.S. has been on the increase.

•         Many empirical studies have found that the death penalty is a deterrent. Still, opponents point to the risk of wrongful execution, the high cost of housing death row inmates for long periods of time, and the possible discriminatory use of the death penalty against poor and minority defendants.

•         Enactment of sentencing guidelines in the 1970s and 80s curtailed the discretion of judges in imposing criminal sentences. One goal of the reform was to eliminate unwarranted disparities in sentencing for offenders convicted of the same crime; another was to stiffen sentences in order to enhance deterrence. Empirical evidence is mixed regarding whether the guidelines eliminated disparities in sentencing. As for deterrence, there is some evidence that state-imposed guidelines have actually caused the crime rate to increase.

•         The bail system is designed to balance the benefit of allowing criminal defendants to remain free prior to trial (given the presumption of innocence) against the risk that they will flee and possibly commit further crimes. The optimal bail is therefore increasing in the likelihood that the defendant will flee.

•         Potential victims of crime often invest in measures aimed at reducing their risk of being victimized. Examples include alarm systems and private security guards. Private protection measures of this sort resemble victim precaution against accidents in tort law.

•         Plea bargaining—the admission of guilt by a criminal defendant in return for a reduced sentence—is the means by which the vast majority of criminal convictions are obtained. Economic models of plea bargaining are similar to settlement models of civil litigation, except that the prosecutor, representing the state, takes the role of the plaintiff.

•         Plea bargaining places considerable power to determine criminal sentences in the hands of prosecutors. To the extent that prosecutors pursue ex post proportional punishments, the process of plea bargaining represents an institutional impediment to the low probability-high penalty punishment scheme prescribed by the economic model of crime.

•         In contrast to the United States, European countries have historically discouraged the use of plea bargaining. European trials, however, tend to be less costly than American trials and offer defendants fewer procedural protections.

•         Empirical evidence links high unemployment and high crime rates. Economic theory explains this correlation as resulting from the rational choice between legal and illegal activities by potential offenders.

•        Recent empirical studies have linked more liberal right-to-carry gun laws with reductions in crime. However, critics have challenged these studies both in terms of their methodologically, and as to whether they are a sound basis for policy.

•        The study of primitive law enforcement shows that the modern concept of proportional punishment, an important feature of Anglo-American criminal justice, had its origins in primitive notions of vengeance and retaliation.

•        Free speech is an important right guaranteed by the First Amendment of the U.S. Constitution. However, the Supreme Court has placed limits on this right, as when its free exercise creates a “clear and present danger” to society. Generally, political speech enjoys greater protection than ordinary speech.

•        The Fifth Amendment protects a criminal defendant’s right against self-incrimination. An economic analysis suggests that the right to remain silent actually helps to make an innocent defendant’s protestations of his innocence more believable.

•        The Fourth Amendment protects people against unreasonable searches and seizures. The law enforces this right by disallowing use of evidence obtained in an illegal search (the exclusionary rule). Some scholars, however, have proposed tort liability for unreasonable searches as an alternative remedy.

•        The illegality of blackmail can be understood as promoting efficient revelation of information prior to trade. Specifically, it discourages people form engaging in transactions aimed at concealing unfavorable information about themselves from prospective trading partners.