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Siena Seminar 04/2005. Crime and Law Enforcement. Nuno Garoupa Universidade Nova de Lisboa CEPR, London. OUTLINE Overview of the Economics of Law Enforcement. Introduction Background: The Classical School; The NeoClassical School. The Economics of Deterrence and Law Enforcement

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Siena Seminar04/2005

Crime and Law Enforcement

Nuno Garoupa

Universidade Nova de Lisboa

CEPR, London


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OUTLINEOverview of the Economics of Law Enforcement

  • Introduction

    • Background: The Classical School; The NeoClassical School.

  • The Economics of Deterrence and Law Enforcement

    • Basic Economic Model.

    • Extensions of Basic Model.

    • Other Goals of Law Enforcement.

    • Empirical Work: The Controversies.

  • The General Structure of Law Enforcement

    • The Choice of Private vs. Public Enforcement of the Law.

    • Determinants of the Structure of Law Enforcement: Criminal, Tort, and Administrative.

  • Economic Aspects of Criminal Procedure.


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INTRODUCTION


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Background

The Early Days

  • Cesare Beccaria (1738-1794)

    [Cesare Bonesana, Marchese di Beccaria]

    Of Crimes and Punishment, 1764

  • Jeremy Bentham (1748-1832)

    Introduction to the Principles of Morals and Legislation, 1789


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Beccaria

  • Fundamental Ideas

    • There should be as little law as possible

    • Criminal law should not simply uphold moral values for their own sake, but should furnish the requirements of society

    • Criminal offenses should be clearly defined

    • Punishment should be proportional to the harm done to society; it should not exceed that which was necessary to ensure that the criminal would not re-offend;

    • Punishment should deter in a general sense;

    • There must be certainty of punishment and it should be imposed promptly

    • Certain moderate punishment is easier to enforce and therefore is more effective than the mere possibility of a severe one;

    • Fines should dominate over imprisonment and death penalty (which he disliked);

    • Corporal punishment is the appropriate way to deal with violent offenders.


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Impact of Beccaria’s work

  • Abolishment of death penalty in Tuscany and, for a while, in Austria.

  • Declaration of Rights of Man in France.

  • Revolutionary Code of 1791: the level of punishment was related to the precise nature of the offense to such an extent that the only function for the judge was the determination of guilt or innocence.

  • American Declaration of Independence.


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Impact in America

“We perceive... that the severity of our criminal law (that is, the old criminal law inherited from England) is an exotic plan, and not the native growth of Pennsylvania... as soon as the principles of Beccaria were disseminated, they found a soil that was prepared to received them.”

William Bradford, 1793, US Attorney-General


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Bentham

  • Fundamental Ideas

    • Criminal law should be subject to the principle of “the greatest happiness of the greatest number” (utilitarism);

    • Every human act should be first evaluated in terms of whether it will cause pleasure or pain;

    • To deter a crime, the amount of pain derived from the forbidden act should be greater than the amount of pleasure;

    • Harsh punishment should be constrained by the social contract, no-one could be taken to have agreed to the possibility of receiving excessively harsh punishment;


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Impact of Bentham

  • Reports for a Criminal Code (1833-1848) in the UK;

  • Code Napoleon of 1810.


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Neoclassical School

  • Rossi (1787-1848); Garraud (1849-1930); Joly (1839-1925).

  • Fundamental Ideas:

    • There are limitations to rational choice;

    • Punishment should fit the crime rather than the criminal;

    • People are free not to choose crime.


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And Rational Choice Goes Away...

  • Positivism... The predestined model;

    [from 1880s to 1960s]

  • Labelling Theories ... The victimized model;

    [from the 1960s on to today]


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... And Rational Theory makes a comeback

  • The Modern Rational Theory

    • James Q. Wilson, Thinking About Crime (1975)

    • Clarke and Cornish, introduce limited rationality (1987)

    • Cohen and Felson, Routine Activities Theory (1979)

    • Hirschi, Social control theory (1969)

    • Gottfredson and Hirschi, General theory of crime (1990)

  • The Economic Theory

    • Becker (1968, JPE)

    • Stigler (1970, JPE)

    • Ehrlich (1973, AER)

    • Work by Polinsky and Shavell: OPTIMAL LAW ENFORCEMENT


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ECONOMICS OF ENFORCEMENT


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BASIC MODEL

  • Objective of law enforcement: DETERRENCE.

  • Why?: Externality (social harm or social damage).

  • How?: Internalize externality.

  • Market Approach to Law Enforcement:

    • Is there a market for offenses?

    • Is a sanction really a price?

      • Price approach (Becker, 1968 JPE)

      • Pigou taxation approach (Cooter, 1982 Columbia LR)

  • Policy instruments:

    • Sanction: Fine;

    • Resources devoted to punishment: Probability;


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BASIC MODEL

  • Individuals compare:

    • Benefits

      • Illegal Gain

      • Other Gains (Psychological, Biological,…)

    • Costs

      • Expected Punishment

      • Social Costs: Stigma

      • Other Costs (Psychological)

  • Decision to offend is the rational outcome of comparing costs and benefits

    There will be crime if Benefits > Costs


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NORMATIVE FRAMEWORK

  • What are the payoffs?

    • Criminal : Benefits of crime – Costs of crime

    • Victim: Harm from crime

    • Government: Benefits from punishment– Enforcement Costs


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NORMATIVE FRAMEWORK

  • Utilitarian Social Welfare:

    Benefits of Crime [C] + Benefits from Punishment [G] – Costs of Crime [C]– Harm from Crime [V] – Enforcement Costs [G]


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NORMATIVE FRAMEWORK

  • Should Illegal Gains be Considered?

    • Social Contract

    • Kaldor-Hicks Efficiency

    • Pareto Conflict Theorem (Kaplow and Shavell, 2000 JPE)


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DETERRENCE WITH FINES

  • Compliance is achieved if Benefit from Crime = Cost of Crime

  • Benefit = Illegal Gain

  • Cost of Crime = Probability x Fine


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DETERRENCE WITH FINES

  • Compliance is Efficient if...

    Illegal Gain < Harm

  • Compliance is NOT Efficient if...

    Illegal Gain > Harm

  • Therefore, we should have...

    Probability x Fine = Harm


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THE MULTIPLIER PRINCIPLE

Fine=Harm/Probability

Harm = 100


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LIMITATIONS OF MULTIPLIER PRINCIPLE

  • Resistance to Inflating Sanctions

    • Punishment should fit the crime

  • Difficulty in estimating accurately the probability of punishment

  • Individuals are not risk neutral

  • Does not say which policy is efficient


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BECKER’S FUNDAMENTAL RESULT

Fines are costless transfers

Resources devoted to punishment are socially costly

High Fine – Low Probability

Fine= Entire Wealth

Probability should go to Zero


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BASIC PROPERTIES OF LAW ENFORCEMENT

  • Acts that have a benefit higher than the external cost they cause SHOULD NOT be deterred and SHOULD be punished.

  • Acts that have a benefit lower than the external cost they cause SHOULD be deterred.


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BASIC PROPERTIES OF LAW ENFORCEMENT

  • Punishment should be based on harm to the victim and not on the gain to the criminal (Polinsky and Shavell, 1993 JLEO).

  • A sanction based on the gain to the criminal would deter by removing the illegal gain. However, if the gain is above the level of harm, the deterrence of these acts would be inefficient.


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OPTIMAL LAW ENFORCEMENT

  • The Multiplier Principle is not Efficient because it does not care about enforcement costs.

  • Efficient probability and sanction should maximize social welfare

  • Fine equals entire wealth (Becker)

  • Probability “equals”

    Harm/Fine – Marginal Cost of Enforcement

    • Expected Fine is less than Harm

    • Some under-deterrence is efficient (Polinsky and Shavell)

    • Complete deterrence is not efficient (Polinsky and Shavell)


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OPTIMAL LAW ENFORCEMENT

  • Efficient Deterrence is NOT…

    … Complete Deterrence.

    … achieved by the Multiplier Principle.

  • Efficient Deterrence is…

    … maximization of Social Welfare.

    … about criminals being able to compensate victims (potential).


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DETERRENCE WITH NONMONETARY SANCTIONS

  • Nonmonetary sanctions are different because:

    • They are socially costly to impose (NOT costless)

    • They create disutility (NOT transfer)


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DETERRENCE WITH NONMONETARY SANCTIONS

  • Optimal Nonmonetary Sanctions (Polinsky and Shavell, 1984 JPubE):

    • Should NOT be maximal…

    • Should be used infrequently…

    • Should be implemented once fines are exhausted…

      • Less wealthy people

  • Should only be applied for more harmful acts…


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DETERRENCE WITH NONMONETARY SANCTIONS

  • Why NOT?

    • Wealth is private information: imprisonment as a device for information revelation (Levitt, 1996 IRLE)

    • Disutility of imprisonment (Polinsky and Shavell, 1998 JLS)

      • Risk neutrality with respect to fines

      • Risk-aversion with respect to imprisonment

    • Corruption or other means of punishment avoidance (Garoupa and Klerman, 2004 IRLE)


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LAW ENFORCEMENT LITERATURE


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Marginal Deterrence

Multiple Offenses

Attempts

Repeat Offenders

Deterrence with a Reduction in Enforcement Costs

Plea-Bargaining

Self-Reporting

Corruption

Avoidance activities including defense expenditure

Legal Aid

Corporate & Business Crime

Principal Agent Theory

Should the Management or the Shareholders be Punished?

Deterrence vs. “Cover Up”

Victims

Precaution

Should we have comparative negligence rules in criminal law?

Compensation

Hate Crimes

Enforcement Errors

Deterrence

Miscarriage of justice

Systematic or Random?

Incentives for Enforcement Agents

Monitoring versus Investigation

What do Prosecutors maximize?

What do Judges maximize?

LAW ENFORCEMENT LITERATURE(since 1979)


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MARGINAL DETERRENCE

  • If sanctions are maximal for all acts, the marginal expected cost for a second crime is zero... It will not be deterred!

  • Suppose there are two possible criminal acts:

    • Objective 1: Deter act A and act B.

    • Objective 2: If act A has been committed, deter act B.

    • Objective 3: If act B has been committed, deter act A.


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MARGINAL DETERRENCE

  • If we apply maximal fines objectives 2 and 3 cannot be achieved!!

  • Therefore, in order to satisfy objective 2 and 3, we need nonmaximal fines.

  • Objective 1 is deterrence in the general sense whereas objectives 2 and 3 are marginal deterrence.


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MARGINAL DETERRENCE

  • Implications (Stigler and others):

    • ... More harmful acts have higher fines, but less harmful act should have lower fines...

    • ... The fine for act A should increase with the level of harm generated by act A and decrease with the level of harm generated by act B...

    • ... There is a tension between marginal deterrence objectives and general deterrence objectives...


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OTHER GOALS OF ENFORCEMENT

  • Incapacitation

  • Rehabilitation

  • Retribution

  • Preference Shaping

    • Stigma

    • Social Norms


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OTHER GOALS OF ENFORCEMENT

  • Incapacitation

    • Benefit of incapacitation is the harm s/he would commit otherwise;

    • Imprisonment is more effective than fines;

    • However, in some particular contexts, other sanctions can be equally effective…

      • … losing driver license, suspending professional rights,…

    • Probability of detection and punishment is irrelevant.


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OTHER GOALS OF ENFORCEMENT

  • Incapacitation

    • Deterrence is about dissuading an individual from committing a criminal act;

    • Incapacitation is about preventing an individual from engaging in a criminal act and remove parties from positions in which they could cause harm;

    • What an individual knows is irrelevant for incapacitation.


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OTHER GOALS OF ENFORCEMENT

  • Incapacitation

    • The marginal benefit from incapacitation should equal the marginal cost;

    • Only those people who are highly prone to harm society should be incapacitated.

    • Empirical question: can we distinguish incapacitation from deterrence?

      • See Kessler and Levitt on using sentencing enhancements to distinguish INC and DET.


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OTHER GOALS OF ENFORCEMENT

  • Rehabilitation

    • Marginal benefit from changing criminogenic preferences should equal the marginal cost of rehabilitation programs.

    • Empirical literature is not exciting about rehabilitation…

  • Retribution

    • Sanctions will be higher than otherwise…


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OTHER GOALS OF ENFORCEMENT

  • Preference Shaping

    • Stigma

      • Deterrence. (Rasmusen, 1996 JLE)

      • Intertemporal inconsistency: entry vs. exit barriers. (Funk, EER 2005)

    • Social Norms

      • Norms management

      • Relationship between extralegal and legal norms

      • Criminal law as a signal

      • Criminal sanctions as part of optimal morality rules

    • Expressive Law and Economics

      • Criminal Law as a focal point


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EMPIRICAL ANALYSIS


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EMPIRICAL ANALYSIS

  • The decline of crime in the 1990s in the US

    • The magnitude

    • The broad range

    • The universality

    • The persistent, continuous nature of the crime decline

    • Unexpected drop

  • The controversies

    • Death penalty

    • Guns

    • Legal abortion

    • Effects of sentencing guidelines on crime rates

    • Affirmative action on policing

    • Racial bias on arrests

    • Low female criminality

    • Effects of juvenile sentencing rules on juvenile delinquency


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(Levitt, 2004)


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(Levitt, 2004)


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(Levitt, 2004)


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CAPITAL PUNISHMENT

  • DEBATE

    • Ehrlich (1973, 1975): seven murders per execution.

    • A number of critics demonstrated the sensitivity of Ehrlich’s findings to minor changes in specification.

    • Similar debate in Britain (Wolpin, Pyle, Cameroon).

    • Leamer and McManus in the late 1980s argue that the evidence of deterrence is essentially a product of the researcher’s prior beliefs.

    • Ehrlich and Liu (1999): focus on 1940 and 1950, there is a deterrent effect.

    • A series of more recent studies that incorporate data from the 1990s find yet again a deterrent effect. But others do not. Measurement problems and econometric specification are at the heart of the debate.

    • Levitt (2004): believes if there is any effect, it is small.


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CAPITAL PUNISHMENT

  • Levitt’s argument against a substancial deterrent effect of capital punishment:

    • Rarity of executions and long delays in doing so...the probability is still below 1 in 200 (2% annual execution rate for those on death row, just twice the death rate from accidents and violence among all American men).

    • Even if Ehrlich’s optimistic empirical estimate would only eliminate 364 homicides per year, less than 1/20 of the observed decline.

  • Notice: the question of deterrence is effectiveness and not efficiency of dealth penalty.


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CONCEALED WEAPONS LAWS

  • Concealed Weapons (Shall Issue) Laws

    • Argument: in face-to-face contact and for particular crimes, armed victims raise cost faced by a potential offender.

  • Under Shall Issue Laws:

    • A law that allows a citizen to carry a concealed handgun if h/she can demonstrate a need to a governmental official is a discretionary or “may issue” law;

    • A “shall issue” law is designated to eliminate discretion on the part of officials because permits have to be issued unless specific and easily verifiable factors say otherwise.

    • Permit cannot be issued for:

      • Individuals below 18 or 21;

      • Those who have a criminal record or a history of mental illness.


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CONCEALED WEAPONS LAWS

  • DEBATE over the enactment of Shall Issue Laws with respect to Gun Concealed on Crime Rates

    • Lott and Mustard (1996, JLS) , Lott (1997, JLS; 2000) NEGATIVE

    • Black and Naggin (1998, JLS), Duggan (2001, JLS), Ayres and Donohue (2001, ALER; 2003, Stanford LR)  NO, SOME POSITIVE


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ABORTION AND CRIME

  • The Legalization of Abortion (Roe v. Wade)

    • Theory

      • Unwanted children are at greater risk for crime;

      • Legalized abortion leads to a reduction in the number of unwanted births.

    • Evidence by Donohue and Levitt (2001, QJE)

      • The five states (NY,W, Alaska, Hawaii and California after SC of California ruling of 1969) that allowed abortion in 1970 experience declines in crime earlier than the rest of US.

      • States with high and low abortion rates in the 1970s experienced similar crime trends for decades until the first cohort exposed to legalized abortion reached the high-crime ages around 1990. At that point, the high abortion states saw dramatic declines in crime relative to low abortion states over the next decade.

      • Panel data estimates confirm the strong relationship between lagged abortion and crime.


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ABORTION AND CRIME

  • Debate:

    • Lott and Whitley (2003) criticize:

      • Abortion may prevent the birth of "unwanted" children, who would have relatively small investments in human capital and a higher probability of crime.

      • On the other hand, some research suggests that legalizing abortion increases out-of-wedlock births and single parent families, which implies the opposite impact on investments in human capital and thus crime.

      • The question is: what is the net impact?

      • They find evidence that legalizing abortion increased murder rates by around about 0.5 to 7 percent.

      • Previous estimates are shown to suffer from not directly linking the cohorts who are committing crime with whether they had been born before or after abortion was legal.

      • Though abortion was indeed legalized in New York, California, Alaska, Hawaii, and Washington prior to the 1973 Roe vs. Wade decision, there were also a sizeable number of abortions being performed in other states where abortion was legal for the life or "health" of the mother before 1973. Indeed, several of these states had abortion rates as high or higher than those states where abortion was legalized.

    • Joyce (2003):

      • Demographers have concluded that most legal abortions in the early 1970's replaced illegal abortions. Since no one has data on illegal abortion rates, the results in Donohue and Levitt (2001) may be spurious.


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STRUCTURE OF LAW ENFORCEMENT


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PRIVATE vs. PUBLIC ENFORCEMENT

  • Theory

    • Becker and Stigler, 1974 JLS

    • Landes and Posner, 1975 JLS

    • David Friedman, 1984 JLS

    • Enforcement Problems:

      • Under-enforcement; Polinsky, 1980 JLS

      • Error; Garoupa, 1997 IRLE

      • Rent-seeking; Garoupa and Klerman, 2002 ALER

  • Historical Cases

    • Roman Law

      [Posner 1981, Parisi 2002 ALER, Garoupa and Gomez 2004]

    • England vs. France

      [Friedman 1996 UChicago R., Glaeser and Shleifer 2002 QJE]

    • Medieval (pre-Norwegian) Iceland

      [Friedman 1979 JLS]


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    THEORY

    • Becker and Stigler, 1974 JLS

      • A system where the enforcer receives the fine paid by the offender eliminates corruption;

      • We need private enforcement to get efficient deterrence.


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    THEORY

    • Landes and Posner, 1975 JLS

      • A fine is the price for criminal market and price for the enforcement activities – it cannot be set at a level which will optimize both criminal and enforcement activities.

      • Private enforcers will not internalize the positive externality from raising the probability, hence crime rates will be higher.


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    THEORY

    • David Friedman, 1984 JLS

      • Government enforcement is also subject to inefficiencies, therefore the question is which system is superior  Empirical answer…

      • Enforcement contracts are prior to detection, and therefore the deterrent effect of catching criminals can be internalized by “advance contracting” as in any other market.

      • Allocation of the right to catch criminals: private property of the victim who should be able to sell it to the highest bidder.


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    THEORY

    • Private Enforcement Problems:

      • Under-enforcement; Polinsky, 1980 JLS

        • Monopoly

        • Competitive Market

      • Error; Garoupa, 1997 IRLE

        • More errors than efficient;

        • “Sanction” enforcer when accused is found not guilty  pay for performance

        • Make sure performance measure cannot be manipulated: evidence,…

      • Rent-seeking; Garoupa and Klerman, 2002 ALER

        • Enforcers and Government Bureaucrats compete for rents.


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    STRUCTURE OF LAW ENFORCEMENT

    • Determinants of the Structure of Law Enforcement.

    • Why Criminal Law?

      • Criminal and Tort.

      • Criminal, Tort and Administrative.


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    GENERAL STRUCTURE OF LAW ENFORCEMENT (from Shavell, 2004)


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    DETERMINANTS OF STRUCTURE OF THE LAW (from Shavell, 2004)

    • Determinants of Optimal Stage of Intervention

      • Magnitude of Possible Sanctions for Deterrence

      • Prevention

      • Information about Acts:

        • When is available

        • To Whom is available … State… Parties

  • Enforcement Costs


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    DETERMINANTS OF STRUCTURE OF THE LAW (from Shavell, 2004)

    • Determinants of Optimal Form of Sanctions

      • Level of Wealth

      • Illegal Gain

      • Harm

      • Resources Devoted to Detection and Punishment

        • Enforcement Costs

        • Distribution of Costs


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    DETERMINANTS OF STRUCTURE OF THE LAW (from Shavell, 2004)

    • Determinants of Public vs. Private Enforcement

      • Information is primarily private

        • Reporting

        • Compensation, Retribution

  • Effort must be Expended to Identify Injurers

    • Information systems may constitute natural monopolies


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    CRIMINAL VS. TORT

    • Posner’s Typology of Crime (1985, CLR):

      • Criminal Law deters pure coercive transfers of wealth, pure implying it is not an accident of productive activities.

      • Crimes are acts that aim at “market bypassing”

        • Acquisitive crimes bypass explicit markets

        • Crimes of passion bypass implicit markets

      • Allowing coercion would create incentives for potential victims to spend heavily on self-protection.


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    CRIMINAL VS. TORT

    • Problems:

      • What is the difference between intentional torts and crime in a “market bypass approach”?

      • Why are some conducts crimes at common law (counterfeiting) and others made criminal by statute (tax evasion or price-fixing)?

      • Some crimes are voluntary exchanges, prostitution, gambling…

        • Effect on third parties.


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    CRIMINAL VS. TORT

    • Criminal law is designed primarily for when tort law does not work…

      • For the poor…

      • The affluent are kept in line by tort law…

    • Same conclusion as Critical Criminology but…

      • They think it is wrong!

      • Posner (CLR, 1985) explicitly thinks it is ok!!


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    CRIMINAL VS. TORT VS. ADMINISTRATIVE

    • Economic Explanations for Crime, Tort and Administrative overlap:

      (Rubinfeld and Sappington, 1987 RAND; Garoupa and Gomez, 2004 ALER; Pistor and Xu, 2002)

      • Regulatory Enforcement is cheaper but less effective;

      • Forces production of information by victims and enforcers;

      • Generates “competitive enforcement”

        • Duplication of Costs

        • Deters Corruption

        • Avoids Error

  • Incompleteness of the law


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    ECONOMICS OF CRIMINAL LAW


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    CRIMINAL LAW(Posner, CLR 1985)

    • Criminal Intent

      • Distinguish intent from awareness.

      • Unless the criminal defendant confesses, his state of mind has to be inferred from actions…

      • Deterrence theory requires premeditation…

        • Behavioral Approach to Crime (Jolls, Sunstein and Thaler, 1998 Stanfort LR, but see criticism by Arlen, 1998 Vanderbilt LR and Garoupa, 2003 EJLE)


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    CRIMINAL LAW(Posner, CLR 1985)

    • Defense of Insanity

      • Cannot be deterred…

      • But what about incapacitation?


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    CRIMINAL LAW(Posner, CLR 1985)

    • Defense of Necessity

      • No question of incapacitation,

      • Lowers transaction costs…

      • Widespread use could bypass market transactions.

      • Example: Dudley and Stephens (1884).

        • One of them was near dead in any case, and that killing and eating save the other three men.


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    CRIMINAL PROCEDURE AS A MARKET SYSTEM(Easterbrook, JLS 1983)

    • Ideal Criminal Procedure Market System:

      • Optimal pricing: internalize social harm;

      • Efficient trade-off between fines and severity;

      • Optimal allocation of resources given constrained budgets:

        • Price set by negotiations;

        • Feedback effect


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    CRIMINAL PROCEDURE AS A MARKET SYSTEM(Easterbrook, JLS 1983)

    • Criminal Procedure Market System:

      • Prosecutorial Discretion:

        • European compulsory prosecution model is inevitably ineffective;

        • Rules produce behavior to escape clauses: outcomes are arbitrary and unexpected.

        • Market Failure objections:

          • Prosecutor does not seek to maximize social welfare;

            • Agency costs.

          • Results are inequitable.

            • The Role of ex post equality in defining fair treatment


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    CRIMINAL PROCEDURE AS A MARKET SYSTEM(Easterbrook, JLS 1983)

    • Criminal Procedure Market System:

      • Efficient Prosecution:

        • Decision not to prosecute;

        • Selective prosecution;

        • Selection of charge;

        • Upping the Ante.

      • Domination of the Grand Jury

        • Limit private prosecution

        • Discovery


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    CRIMINAL PROCEDURE AS A MARKET SYSTEM(Easterbrook, JLS 1983)

    • Criminal Procedure Market System:

      • Plea-Bargaining:

        • Price-establishing function at low cost

        • Market failure arguments:

          • Defendants’ lawyers will use it to undermine the interests of the accused.

          • Discrimination against poor defendants.

          • No voluntary sales by defendants of their rights.

            • Reward for pleading guilty or a penalty for insisting on trial?


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    CRIMINAL PROCEDURE AS A MARKET SYSTEM(Easterbrook, JLS 1983)

    • Criminal Procedure Market System:

      • Efficient rules of plea-bargaining:

        • Plea-Bargains are Binding

          • Written contract

        • Unconscionable Pleas can be Binding

        • Broken Bargains

          • Deal is off.

        • Involvement of the Judge in Bargaining

          • Should be limited because has less access to evidence than prosecutor.


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    CRIMINAL PROCEDURE AS A MARKET SYSTEM(Easterbrook, JLS 1983)

    • Criminal Procedure Market System:

      • Sentencing Discretion:

        • Price discrimination;

        • Reduction of information costs;

        • Market Failure Objections:

          • Inequitable sentencing:

            • Ex ante expected penalties are the same;

            • Elimination of discretion does not reduce ex post inequality;

            • Why should criminals have a moral claim to equal treatment when the costs fall on the law abiding?

        • Notice the recent debate over sentencing guidelines.


    Jurisdictional competition in criminal justice l.jpg

    JURISDICTIONAL COMPETITION IN CRIMINAL JUSTICE

    • Competitive federalism in Criminal Justice.

      • Europe (Schengen): Garoupa, 1997 IRLE

      • US: Doron, 2004 Michigan LR

    • Problems:

      • Displacing crime;

      • Displacing criminals.

    • Regulating the Market for Criminal Justice

      • Race to Bottom: displacement.

      • Race to Top: raise probability of detection.

      • Local solutions vs. central planners (federal criminal law).


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