Economics Dictionary of ArgumentsHome
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| Criminal law: Criminal law is the branch of law that deals with offenses against the state or society, defining and regulating conduct deemed harmful or threatening. It encompasses prosecution, trial, and punishment of individuals found guilty of crimes. See also Law, Laws, Crime, State, Society._____________Annotation: The above characterizations of concepts are neither definitions nor exhausting presentations of problems related to them. Instead, they are intended to give a short introduction to the contributions below. – Lexicon of Arguments. | |||
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Economic Theories on Criminal Law - Dictionary of Arguments
Parisi I 17 Criminal Law/economc theories/Miceli: [there is a] normative analysis [an economic approach to crime control] based on the economic theory of law enforcement as first formalized by Becker (1968)(1) and elaborated on by Polinsky and Shavell (2000(2), 2007(3)), among others. [Becker-Polinsky-Shavell, BPS model]. The economic approach to crime control is based on the assumption that rational offenders decide whether or not to commit an illegal act by comparing the dollar value of the gains from the act to the expected cost, which is equal to the magnitude of the sanction multiplied by the probability of apprehension and conviction. Cf. Hand test: >Tort law/Learned Hand. BPS model: Given the goal of deterrence, the optimal law enforcement policy prescribed by the BPS model involves choosing the probability of apprehension, the Parisi I 18 type of criminal sanction (a fine and/or prison), and its magnitude, to minimize the overall cost of crime. The standard BPS model asserts that efficiency is the (primary) norm for deriving the optimal enforcement policy. 1) (...) the BPS model says that the optimal sanction, whether a fine or imprisonment, should be maximal. The reason this is true for a fine is clear: offenders only care about the expected sanction, pf, and since it is costly to raise the probability of apprehension, p, but not the fine, f, it is cost-minimizing to raise the fine as much as possible (up to the offender’s wealth) before raising the probability. Less obviously, when the sanction is prison only, the optimal prison term should also be maximal. Intuitively, expected costs can be lowered by increasing the prison term and lowering the probability of apprehension proportionally (thereby holding deterrence fixed) because the punishment, although costly, is imposed less often. In terms of actual punishment policy, however, it is clear that fines and prison terms are not set at their maximal levels for most crimes. In this sense, the model is not descriptive of actual legal practice. 2) (...) the BPS model predicts that imprisonment should only be used after fines have been used up to the maximum extent possible (for example, up to the offender’s wealth), and only then if additional deterrence is cost-justified. Again, the logic is clear: fines are costless to increase while prison is costly, so it is optimal to exhaust the costless form of punishment first. Norms/efficiency: The reason for both of these divergences of practice from theory is almost certainly due to the importance of norms besides efficiency, such as fairness or equal treatment, that society deems relevant for the determination of optimal criminal punishment.* Equality/practise/society: (...) the idea of sentencing poor defendants to lengthier prison terms than wealthy defendants for the same crime would strike many as unacceptable (if not unconstitutional) because it would appear that the wealthy were being allowed to buy their way out of prison (Lott, 1987)(5). Society therefore apparently tolerates a costlier punishment policy for the sake of more equal treatment of offenders. >Crime/Economic theories. * See, for example, Miceli (1991)(4) and Polinsky and Shavell (2000)(2). 1. Becker, Gary (1968). “Crime and Punishment: An Economic Approach.” Journal of Political Economy 76: 169–217. 2. Polinsky, A. Mitchell and Steven Shavell (2000). “The Economic Theory of Public Enforcement of Law.” Journal of Economic Literature 38: 45–76. 3. Polinsky, A. Mitchell and Steven Shavell (2007). “The Theory of Public Law Enforcement,” in A. M. Polinsky and S. Shavell, eds., Handbook of Law and Economics, 403–454. Amsterdam: North-Holland. 4.Miceli 1991 5. Lott, John (1987). “Should the Wealthy Be Able to ‘Buy Justice’”? Journal of Political Economy 95: 1307–1316. Miceli, Thomas J. „Economic Models of Law“. In: Parisi, Francesco (ed) (2017). The Oxford Handbook of Law and Economics. Vol 1: Methodology and Concepts. NY: Oxford University Press._____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments The note [Concept/Author], [Author1]Vs[Author2] or [Author]Vs[term] resp. "problem:"/"solution:", "old:"/"new:" and "thesis:" is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition. |
Economic Theories Parisi I Francesco Parisi (Ed) The Oxford Handbook of Law and Economics: Volume 1: Methodology and Concepts New York 2017 |
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> Counter arguments in relation to Criminal Law
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