Otto-von-Guericke-Universität
Magdeburg
Fakultät für Wirtschaftswissenschaften
Can punishment ever be efficient?
Seminar Paper
Teacher:
Dr. Roland Kirstein
Seminar:
Law and Economics
Name:
Elena Tsvetkova
Matrikel:
173311
Field of Study:
E-mail:
Economics and Management, B.Sc.,
5th semester
elenats@abv.bg
Date:
08/01/2007
Table of contents:
1. Introduction……………………………………………………………..3
1.1 Definition of crime…………………………………………………..3
2. Punishment……………………………………...………………………5
2.1 Definition of punishment…………………………………………....5
2.2 History of punishment………………………………………………5
2.3 Theories of punishment……………………………………………..6
2.4 Friedman’s theory of economic efficiency…………………………7
2.5 Efficient and inefficient crimes……………………………………..7
2.6 Social costs of crime and punishment…………………………….10
3. Types of punishments and their level of efficiency…………………..11
3.1 Probation……………………………………………………………11
3.2Community service…………………………………………………11
3.3 Forfeiture of property……………………………………………...12
3.4 ‘Efficient’ punishment……………………………………………..13
4. Conclusion……………………………………………………………..14
Bibliography…………………………………………………………...15
2
Excellence can be attained if you...
care more than others think is wise.
risk more than others think is safe.
dream more than others think is practical.
expect more than others think is possible.
Unknown Author
1. Introduction
1.1 Definition of crime
The core definitions needed for the plausible comment on the problem Why not
hang them all are those of crime and punishment. Encyclopedias and scientific
books offer us a wide range of explanations of the terms, e.g. ‘The intentional
commission of an act usually deemed socially harmful or dangerous and
specifically defined, prohibited, and punishable under criminal law’1. Another,
more detailed one is:
‘1.an action or an instance of negligence that is deemed injurious to the public
welfare or morals or to the interests of the state and that is legally prohibited.
2.criminal
3.the
4.any
activity
habitual
offense,
and
or
those
frequent
serious
engaged
commission
wrongdoing,
in
of
or
it.
crimes.
sin.
5. a foolish, senseless, or shameful act.’2 and another one explained through
deviance and deviant behaviour by Durkheim : ‘The violation of law is also called
a legalistic definition of crime or formal deviance, while a normative definition
refers to crime as an informal social violation (behaviors caused by cultural
differences) or informal deviance. Deviant behavior is behavior that is a recognized
violation of social norms (standards, specifying how human beings ought to
behave).’3
1
http://www.britannica.com/eb/article-9027899/crime
2
http://www.sequart.com/columns/?col=128
3
Durkheim E., The Division of Labor in Society, 1997 [1893], New York: Free Press
3
The French sociologist Emile Durkheim proposed the sociological theory of
deviant behaviour based on his works on anomie (when social norms break down
and the controlling function of society is no longer effective human beings are left
on their own).
‘An act is criminal when it offends strong and defined states of the collective
consciousness. In other words, we must not say that an action shocks the common
consciousness because it is criminal, but rather that it is criminal because it shocks
the common consciousness. We do not reprove it because it is a crime, but it is a
crime because we reprove it’4.
In comparison to most criminologists who consider crime to be a pathological
phenomenon and sought its explanation in the mind of the criminal, Emile
Durkheim saw crime as a normal, inevitable and necessary part of every society.
According to him, crime has a direct utility as well as an indirect one (Dirkheim,
874): In order for changes in law and in moral norms to be possible, ‘the collective
sentiments at the basis of morality must not be hostile to change, and consequently
must have but moderate energy.... Every pattern is an obstacle to new patterns, to
the extent that the first pattern is inflexible’ (873-4). But this ‘moderate energy’ not
only permits change- it also permits crime. If there were no crime, no change
would be possible: ‘To make progress, individual originality must be able to
express itself’ (874). Crime ‘in certain cases directly prepares these changes. Where
crime exists, collective sentiments are sufficiently flexible to take on a new form,
and crime sometimes helps to determine the form they will take’5 (874).
Crimes are considered to be social wrongs of two types – private and public
though it is very difficult to distinguish between them. Private are those between
the victim and the defendant and whether the victim would decide to bring it to
court (dealt with by the civil court). Public are those between the whole community
(the state or the people or the monarch in some countries) and the defender who
must answer in criminal court .It is difficult to explain the difference properly
4
See loc.cit., [1893] 80-81
5
Durkheim, E., On the Normality of Crime, pp. 872-75 in Theories of Society, edited by Talcott
Parsons, Edward Shils, Kaspar D. Naegele, and Jesse R. Pitts. New York: Free Press
4
because in many cases the wrong done to the individual victim is associated with
the wrong that could be and might be done to other people as well, becoming a
threat to the social order and moral values of the society.
2. Punishment
2.1 Definition of punishment
The second most important term that will be necessary to develop the thesis is
punishment. In almost all explanations of the word, whether they are found in
encyclopedias, dictionaries or law literature there exist the imposition of hardship
in response to misconduct; a loss, a pain, a penalty or confinement imposed for
wrongdoing.
According to the Stanford Encyclopedia of Philosophy punishment is ‘an
authorized imposition of deprivations -of freedom or privacy or other goods to
which the person otherwise has a right, or the imposition of special burdens because the person has been found guilty of some criminal violation, typically
(though not invariably) involving harm to the innocent’ 6
2.2 History of punishment
The development of society through ages resulted in significant changes in both
theory and practice of punishment. In primitive tribes the victims, their families or
relatives were responsible for punishing the wrongdoer and that punishment was
vindictive or retributive. Later on the principle of ‘an eye for an eye’ showed the
gradual movement towards the proportionate punishment. Still the quality and
quantity of punishment were left to the individuals but under the control of the
community or the state. The next stage represents the development of laws, the
leading role of the state in the process of punishment and the directive of illegality
of any punitive actions taken by its citizens. From then on, crimes are against the
state and the state has provided itself with the necessary equipment accordingly to
6
http://www.civilrightsiworld.com/wiki1-Punishment
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exact justice and maintain public order. Hence, the vindictive and retributive
character of punishment remained till the new ideas of humanist thinkers spread
widely provoking the emergence of such theories in the philosophy of punishment
as consequentialism, deontology, utilitarianism, retribution and liberal theory.
Roger W. Martin mentioned Utilitarianism, Retributivism, Principle of Legality
and Doctrine of Proportionality among the theories of criminal punishment. Other
principles specified are
retribution, deterrence, restraint, rehabilitation and
restoration. Deterrence, restraint (incapacitation) and rehabilitation are considered
to be utilitarian by Martin, while restoration focuses on the role of the victim in the
process and highlights the restitution for victims.
2.3 Theories of punishment
The main concept of Utilitarianism is the moral rule to strive for the ‘greatest
happiness for the greatest number’. People ought to act so as to produce the best
consequences possible. As for consequences, the Utilitarians include all of the good
and bad produced by the act, whether after the act or during it. If the difference in
the consequences of alternative acts is not great, Utilitarians do not regard the
choice between them as a moral issue.
In recent years additional theories emerge- the economics of law by David
Friedman being one of the most interesting. His economic approach to crime is
based on economic efficiency, that is, on the assumption that criminals are rational
and they commit crimes only if the benefits of them outweigh the expenses and the
possibilities of being caught are prone to zero. Here the ‘routine activity’
explanation of crime by Cohen and Felson may be used to illustrate the topic – a
crime occurs when there are three elements present – ‘a motivated offender, a
suitable target and the absence of a capable guardian’7. All these elements can be
dealt with properly so as to reduce the total number of crimes committed and many
theories and methods have been tried so far but with controversial success.
7
http://www.securitysa.com/article.aspx?pklArticleId=2714&pklIssueId=31&pklCategoryId=106
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In a lawful rational society, ideally, it would be better to prevent a crime rather than
punish the offenders afterwards. But this topic of crime prevention is not of any
concern here though its importance has long been underestimated.
2.4 Friedman’s theory of economic efficiency
In his theory of economic efficiency Friedman states that criminal deeds such as
robbery, theft, stealing can be analyzed from the economic point of view, e.g.- if a
theft produces more than the profession of a teacher than more people will become
thieves. Accordingly, the battle on the market of thieves will become more severe,
there will be fewer places to ‘work’ (more thieves per a loyal citizen), and, as a result,
the costs cancel the profit. In this case the thief would better become a teacher again.
From that standpoint two-thirds of Bulgarian citizens must have become thieves – but
they have not. So, this theory misses a very important moment - the moral judgement
of the person and the social norms – which is very close to the consequentialism – that
any human being should act so as to produce the best consequences possible(both for
the doer and the society – agent-focused and human-centered). The moral values such
as ‘good ‘or ‘bad’ are not included in the analysis and can not be used to prove that
statement wrong.
2.5 Efficient and inefficient crimes
Friedman refers to crimes as efficient and inefficient ones – the efficient ones
being the above-mentioned in which the value gained is more than the value used
(including the cost of the stolen object, the time and the equipment the thief used)
or the amount of damage done, and the inefficient ones in which the value gained
is less than the value used. No matter how crimes are classified – whether efficient
or inefficient – they are crimes under law and should be processed accordingly.
In all societies reduction of crimes is and has always been one of the main concerns
together with the prosperity of society and the well-being of its members as crimes
directly affect both of them. But the attitude of society towards punishment as such
reveals two problem areas – the purpose of punishment and the forms it takes. The
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first one – the purpose of punishment - falls into two categories – utilitarian and
non-utilitarian (retributive). The utilitarian ‘rehabilitative’ category was dominant
during the XXth century but soon enough was rejected and replaced by retribution
for a number of reasons one of them being the inefficiency in reducing recidivism.
In the XXIth century the system of punishment looks more inefficient than ever. As
Friedman states in his article ‘modern societies have failed to find their way to an
efficient set of penal institutions’8.
In compliance with the revived principle of retributivism – punishments should be
proportionate to the severity of the crimes – most new economic theories including
Friedman’s economic efficacy theory deal with efficiency and inefficiency of
crimes.Friedman states that if the above-mentioned principle is applied, only
efficient crimes will be committed.Durkheim explains that ‘crimes are normal
because no society is exempt from them’ and that ‘where crime exists, collective
sentiments are sufficiently flexible to take on a new form, and crime sometimes
helps to determine the form they will take’and also that ‘if a crime in a society
drops below an average rate, this could be indicative of a severe social disorder with a drop in the crime rate, a revision in the theory of punishment becomes
necessary’9. In other words crime is an inevitable social evil so let it exist and try
to cope with it.
As it has already been mentioned there are many theories to explain and justify the
goals of punishment – Friedman’s idea is that our society fails to provide efficient
punishment. According to him efficient punishment ‘is measured by the ratio of
punishment cost to amount of punishment: the higher the ratio, the less efficient
the punishment’10. So if the punishment is to be efficient, it has to be large enough
to deter possible offenders and only those who have good reasons for breaking the
law will do it. So in this case the penalty includes a Pigovian tax which is a tax
aimed to correct the negative externalities (a cost or benefit from an economic
8
Friedman D., The Hidden order, Chapter 20
9
Durkheim, E., On the Normality of Crime, pp. 872-75 in Theories of Society, edited by Talcott Parsons,
Edward Shils, Kaspar D. Naegele, and Jesse R. Pitts. New York: Free Press
10
Friedman, D. (1999)
8
transaction that other participants "external" to the transaction bear). Externalities
can be positive(when benefit is generated), or negative (when a cost is imposed
upon others).According to the explanations given the costs of catching a criminal
rises if the efforts applied to catch them are higher – in other words – the higher
the efforts, the more expensive the costs.When there is a crime that produces a 100
dollar net but the expenses to catch the criminal and to punish them equal to one
thousand dollars then from economic point of view ( theory of efficiency) the
punishment is ineffective. From that point of view catching all the offenders and
punishing them would not be worth doing, but from the point of view of citizens
there is no reason in it at all. If criminals are let go undisturbed, the prevailing
opinion of the people would be that the state has given up its prerogative of
enforcing the law and one of the possible outcome would be the appearance of
ersatz private justice. Or as Durkheim states ‘crime may take abnormal forms,
such as when the crime rate is unusually high’11. But even if punishment is
economically ineffective, it should be imposed as in a just, liberal and rational
society not to do so would mean to fail to protect the rights of the citizens that it is
to protect.
The question in this case is how to combine the two points of view with no
negative outcomes – to impose punishment with the least possible expenditure( the
efficient punishment being at least as great as the damage done including the cost
of litigation).
From that standpoint any death penalty would be ineffective as the cost of
catching and killing the criminal would far outweigh the possible benefits for the
society( in case the criminal’s body is left intact) and not taking into consideration
the moral outcomes for the victims and the society as a whole, as well as its
preventive role. Economic efficiency in such cases would be achieved if all the
organs of the criminal are used as transplants which would immediately increase
the benefits of punishment for society. Another problem would be the the attitude
of criminal’s family and relatives to such actions still considered in many countries
11
Durkheim, E., On the Normality of Crime, pp. 872-75 in Theories of Society, edited by Talcott Parsons,
Edward Shils, Kaspar D. Naegele, and Jesse R. Pitts. New York: Free Press
9
as inhumane, but this would be one of the possible solutions for the finding an
efficient crime from the point of view of economoc efficiency. Not mentioning the
fact that Christian moral codes do not approve of such actions, so in the near
future death penalty would not fit the pattern of efficient punishment.
2.6 Social costs of crime and punishment
Let us have a look at the social costs of crime – they include property and personal
losses as well as public and private costs of crime prevention (A) – and now let us
try to explain the imprisonment as an efficient punishment. There are two sides of
the problem – the social benefits of imprisonment and the social costs of
imprisonment (B). When B is bigger than A the punishment is efficient, but is it?
B consists of the social benefits of imprisonment such as deterrence(if punishment
is imposed upon a person who has committed a crime, the pain inflicted will
discourage the offender and other people from repeating the crime - it serves as a
public example or threat that deters people other than the initial offender from
committing similar crimes ), retribution (looked at not as a tool to deter future
crime but as a device for ensuring that offenders pay for what they have done – for
what they ‘deserve’ - ‘eye for an eye’, ‘measure for measure’. ‘Let the punishment
match the offense’. — Cicero (106-43 BC) ‘The severity of the punishment
…..must be in keeping with the kind of obligation which has been violated’. –
(Simone Weil), rehabilitation (to prevent crime by providing offenders with the
education and treatment (to eliminate possible criminal inclinations) and the skills
to become law-abiding productive members of society) and incapacitation/restraint
(If a criminal is incapacitated (imprisoned or executed) such punishment will lack
the criminal the ability (or opportunity) to commit any other future crimes that
could harm society).
The social costs of imprisonment include the direct costs of imprisonment ( food,
surveilance, maintenance, salaries,etc.) and the opportunity costs of foregone
output that people in prison could produce.
With no specific prior calculations it is obvious that the efficiency of
imprisonment is doubtful because when punishment is imposed it has to have
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certain goals for doing so and that those goals are achieved. Furthermore, it has to
be proven that those goals cannot be achieved without punishment and this
punishment is specified for each type of offence.
3. Types of punishments and their level of efficiency
As refers to imprisonment, Friedman states in his article that ‘modern societies
have failed to find their way to an efficient set of penal institutions’12. It concerns
the USA mostly as recent research point out the increasing number of prisoners
compared to previous decades. As a result, the American judicial system in its
pursuit of more effective ways to solve the problem has turned to alternative
sentences to replace imprisonment. Those include fines, probation, community
service and property forfeiture.
3.1 Probation
Probation allows the offender to stay out of prison on condition that they forced to
obey the court’s orders, such as checking in with a probation officer or being
prohibited to leave the place he lives in or engaging in an activity that may
provoke repeat breaking of the law. In such cases of repeat offence the offender is
sent to prison and the sentence is usually higher. Obviously the decision of
applying probation depends on the court but it is determined by severity of crime,
the previous history of the offender and the possibility of them repeating the crime.
The efficiency of such punishment can be measured by the output the offender
produces while out of jail and the saving of the expenses for keeping that person in
prison.
3.2 Community service
Another way of punishment is community service. It is used for minor offences
and can be of various kinds such as library work, cleaning and maintenance of
public areas, or, according to the profession of the offender, it may take different
12
Friedman D., (1999)
11
forms e.g. legal work for lawyers, concerts and performances for musicians,
singers and actors, medical work for doctors and nurses, etc. In each case this way
of punishment is a more profitable one in the notion that benefits (both in terms of
money and in terms of moral value) far outweigh those of imprisonment. So this
could be an effective way of punishment from economic point of view but only for
non-serious crimes.
3.3 Forfeiture of property
In addition to probation and community service, many countries have begun to
apply the forfeiture of property when this property is used in the commission of a
crime, or gained through criminal activity. This could also be considered an
effective punishment unless everything is under the law but there were cases when
the property of people was seized even though they were not charged with any
crimes themselves. An example was provided for an owner of a building which
was seized because a tenant was charged with selling drugs there. On the one
hand, this is a kind of retributive punishment though the focus is shifted (the
practice of "getting even" with a wrongdoer, but the question ‘Who should be
punished?’ does not get the right answer according to the retribution theory.
In comparison to the USA, countries in Western Europe use fines much more
widely than America. First, the fine can be adjusted for the criminal’s income – the
more severe the crime, the higher the fine. From the point of view of economic
efficiency in this case, fines can be much more cost effective than imprisonment as
they create revenue that can be used to help minimize the costs to the society. In
addition, depending on the crime, the level of the fine and the alternative length of
incarceration, fines may be a more effective deterrent. The question here is that
most citizens would not be satisfied with such a solution, especially if they are
among the victims of a crime. Punishing wrongdoers with just a fine which, if they
are rich, would be no problem to pay, is not a decision most of us could agree with.
As it has already been stated, from the point of view of the retributive theory
(shared and supported by a great per cent of members of society) the severity of
crime should fit the punishment. When offenders are rich no harm will be done to
them by imposing a fine (even if the fine is one million dollar or euro) for a murder
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for example. Society might gain something, victims may benefit from it, but the
functions of the fine (both preventive and punitive) will be questioned. And justice
is supposed to serve society and its members not function solely for its own benefit
– justice is not a commercial enterprise and its aim is not to make money. If the
results are well-meaning but not justifiable – what is the point then?
3.4 ‘Efficient’ punishment
There is a reason in combining fines with punishment - the question is to find the
proper combination. If all offences are punished using both fines and other ways of
punishment such as community work, probation, property forfeiture and imprisonment, all parts of the equation will be satisfied ( offenders- they get what they
deserve, victims- they are requited, society- the social costs if imprisonment will be
reduced).
As economic analyses of optimal punishment assume that society'
s goal is to
maximize social welfare, combining all the above-mentioned ways satisfies the
requirements of the theory of efficient punishment and takes into consideration the
rights of the victims at the same time. Whether, though, this is efficient justice is
arguable. It is because its preventive function, if not missing, is latent, it does not
operate the way it is to. Otherwise, why is there an increasing number of crimes
both minor and serious? Current system of justice has failed to achieve any results
in the sphere of prevention.
One of the reasons for that might be the fact that society has done everything it is
supposed to referring prevention, but somebody else has not. This is the idea of two
parties responsible for the problem – society as a unity (or community as such) and
individual members of society as independent participants. In all societies, no
matter liberal or not, not all the people are law-abiding citizens and respect the
rights of others. If I respect other people’s rights I need, not, I insist that my rights
be respected too.The problem is a problem of mutual respect. And if society has
created measures to prevent future crimes – which is – has done its part of the work
and this does not pay off properly then individuals must do theirs. Justice is not
only for the society as a whole, but for its members as individuals as well - there is
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no society without individuals. Society has increased law compliance it is time for
individuals to do something to obstruct those who violate the law. It cannot be
denied that each individual of that same society has links of some or other kind to
other individuals whether they be ties of blood, kinship, friendship or liaisons. Each
of us is influenced by such relations and vice versa. What can be achieved using
these relations ( from the point of view of the theory of economic efficiency)? The
fact is – every individual in a relationship is responsible to a certain degree for what
happens to it. If something beneficial happens, the members benefit from it ( not a
good example will be the situation when my sister robs a bank and shares the
money with me – I benefit from it without taking part in the robbery). If something
bad happens, the outcomes should be shared equally(Accordingly, when she is
caught, I have to share the punishment with her). The idea is that if I know what
could happen to me as a result of my sister’s deeds, I would do something to
prevent it from happening. So, why not impose strict rules for shared
responsibilities for the people of any relation to the offender? According to the
relation, punishments might be more or less strict – the stricter to those belonging
to
the family, namely – mothers, fathers, grandmothers, grandfathers, sisters,
brothers, uncles and aunts. This way the responsibility for preventing crime would
be shared between the society and the individuals. At the same time they would
also share the responsibility for bringing up law-abiding citizens.
4. Conclusion
This imaginary situation is not to state that there is efficient punishment as such or
whether there will ever be ( as in the above-described situation the “externalities”the family, friends, etc.will definitely argue agaist their roles in the process though
they will have to accept responsibility ) but just to say that it satisfies both the
theories of utilitarianism (punishment is forward-looking, aimed to achieve future
social benefits, such as crime reduction) and retribution (punishment is backwardlooking, strictly for punishing crimes according to their severity).
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Bibliography:
Durkheim E., The Division of Labor in Society, 1997 [1893], New York: Free Press
Durkheim E., On the Normality of Crime, pp. 872-75 in Theories of Society, edited by
Talcott Parsons, Edward Shils, Kaspar D. Naegele, and Jesse R. Pitts. New York: Free
Press
Friedman D., The Hidden order, Chapter 20
Friedman D., (1999)
http://www.securitysa.com/article.aspx?pklArticleId=2714&pklIssueId=31&pklCategor
yId=106
http://www.civilrightsiworld.com/wiki1-Punishment
http://www.britannica.com/eb/article-9027899/crime
http://www.sequart.com/columns/?col=128
15
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