The economics of cruel and unusual punishment

European Journal of Law and Economics

Volumn 5, Issue 3, 1998, Pages 235-245

  Palmer, John P ^a   Henderson, John ^b  

^a UNIVERSITY OF WESTERN ONTARIO   (Canada)

^b Lambton College   (Canada)

Author keywords

Crime; Deterrence

Indexed keywords

EID: 54649083667     PISSN: 09291261     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1008681616164     Document Type: Article

References (24)

1. See, for example, the writings of M. J. Radin: "The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause," University of Pennsylvania Law Review, 126, 989-1064, 1978;
2. and "Cruel Punishment and Respect for Persons: Super Due Process for Death," Southern California Law Review, 53, 1143-85, 1980.
3. Also see the minority opinions of Justices Marshall and Brennan in Furman v. Georgia, 408 U.S. 238 (1972), in which the view is expressed that the death penalty is per se in contradiction to the constitutional ban on cruel and unusual punishment.
4. Once again, the assumption of diminishing marginal expected benefit is not crucial to the argument. It does, however, aid its exposition.
5. See G.S. Becker, "Crime and Punishment: An Economic Approach," Journal of Political Economy, 76, 169, 1968. Of course not all crime would be deterred if there exists imperfect information and/or risk-nonneutrality
6. For a more thorough discussion of this point, see R. A. Posner, Economic Analysis of Law (3rd edition), 205-210, Little, Brown and Co., Toronto, 1986.
7. For example, it would be possible to deter most trespassing by making it a capital crime, but doing so would remove much of the disincentive (i.e. expected cost) of murdering the witnesses and apprehenders. A related problem is that having the punishment for lesser crimes set "too high" in the minds of jurors may result in a reduced probability of conviction. See S. Mermin, Law and the Legal System-An Introduction, 14-20, Little, Brown and Co., Toronto, 1973.
8. Of course potential criminals vary in their ability to withstand pain, and so the potential deterrent effect of cruel and unusual punishment is likely to favour the strong-willed as opposed to those who are less able to withstand pain. But this possible variation of the deterrent effect is analytically no different from the varying abilities of potential criminals to bear financial penalties nor from the different opportunity costs of time experienced by those who face incarceration. In every instance, the type of punishment is felt more by some and less by others, leading to a nonuniform deterrence effect. In some instances, the inflicting of pain and humiliation on a criminal might have two benefits to society: deterrance and cost-saving. As a referee has pointed out to us, it is quite likely often cheaper to administer lashings than to incarcerate a convicted criminal.
9. Posner, op. cit., 211, notes that the type and painfulness of executions often varied with the detectability and/or the seriousness of crimes. He fails to take the extra step of noting that execution ends the pain, and that stronger deterrents could easily be contrived if criminals were forced to suffer the pain but were not allowed to die. Of course in some cultures and religions it is believed that the type of death suffered will affect the amount and duration of post-death suffering, and in this way the manner of execution aided the amelioration of the marginal deterrence problem.
10. A similar geometric device is shown in R. Cooter and T. Ulen, Law and Economics, 520-22, Scott, Foresman and Company, Glenview IL, 1988.
11. The assumption also seems to be required if the model is to bear some resemblance to reality and if the curve C is increasing at a decreasing rate. Otherwise we would observe large numbers of people committing large numbers of very serious crimes.
12. For instance, the statutory requirement in the state of Michigan that convicted drug dealers receive life imprisonment with no parole drastically reduces the disincentive to drug dealers of murdering (or threatening to murder) witnesses and arresting officers. Similar problems are faced with the murder of prison guards by those who have already been imprisoned for life or who are on death row (in jurisdictions permitting capital punishment). So while Figure 2 appears to be a somewhat implausible artifact, it does indeed represent some important situations about which much debate has occurred.
13. The legal and administrative costs of these mechanisms (including prolonged debates over whether "the punishment fits the crime"), of course, are high, and tend to offset the benefits of the extra deterrence to some extent.
14. For two excellent treatises on these and other issues in capital punishment, the reader is referred to K. L. Avio, "Capital Punishment in Canada: Statistical Evidence and Constitutional Issues," Canadian Journal of Criminology, 331-49, October, 1988
15. and K. L. Avio, "Retribution, Wealth Maximization, and Capital Punishment: A Law and Economics Approach," Stetson Law Review, 19-2, 373-409, Spring, 1990.
16. The fact that advocates of prison reform frequently refer to modern prison conditions as being tantamount to cruel and unusual punishment provides additional confirmation that at least some other people (in addition to those who commit suicide in prison) recognize the potential seriousness of this effect.
17. Dr. Pangloss, a character in Voltaire's Candide, put forth the tautology that whatever is, is optimal because if it weren't we'd have changed it by now. This statement takes into account all transaction, information, and adjustment costs. A corollary asserts that we are also on the optimal adjustment path as we change things: if we weren't we would change it.
18. There are, after all, many other determinants of crime rates.
19. In this section, the relevant legal error is a type I statistical error, the wrongful conviction of an innocent defendant. For a constant amount of resources, the cost of reducing type I errors (typically the method of doing so would involve a change in the standard of proof or evidence) is an increase in type II errors: allowing guilty criminals to be found not guilty. The reduction of type I errors, in these circumstances, creates more incentives for rational maximizers to engage in criminal activities.
20. Put differently, increasing the amount of resources devoted to detection and prosecution would tend to reduce both type I and type II errors.
21. In fact, there is an additional mechanism whereby allocating additional resources to law enforcement might lead innocent people to seek an even further reduction in punishments. Recall that an increase in resources devoted to crime prevention would increase the probability of convicting criminals. Now, consider the probability of convicting criminals, and the punishment imposed, as substitute inputs in the crime-deterrence production function. An increase in this probability would lower the marginal productivity of punishment and make it less productive in fighting crime. However, if the marginal product of punishment is declining further (as would be the case with the standard assumption of diminishing marginal productivity), then the crime-fighting productivity of imposed punishments could be restored if the punishment were reduced accordingly.
22. See Avio, "Retribution,...," op. cit., 393, and Posner, op. cit., 207.
23. The assumption of pervasive risk aversion, at least in North America, does not seem unreasonable, despite the growing popularity of government sanctioned lotteries. As Bernstein and Geehan point out, "The 'GNP elasticity of demand' for insurance, i.e. the ratio of the percentage increase in national expenditure on insurance to the percentage increase in gross national product per capita, is greater than one." See J. I. Bernstein and R. R. Geehan, The Insurance Industry in Canada, 5, The Fraser Institute, Vancouver, 1988.
24. c.f. n.5 supra