Research Handbook on the Economics of Criminal Law

Research Handbook on the Economics of Criminal Law

Research Handbooks in Law and Economics series

Edited by Alon Harel and Keith N. Hylton

Jeremy Bentham and Gary Becker established the tradition of analyzing criminal law in utilitarian and economic terms. This seminal book continues that tradition with specially commissioned, original papers that span the philosophical foundations of the use of economics in criminal law, both traditional economic perspectives and behavioral and experimental approaches to the discipline.

Chapter 6: Deterrence and Incapacitation Models of Criminal Punishment: Can the Twain Meet?

Thomas J. Miceli

Subjects: economics and finance, law and economics, law - academic, criminal law and justice, law and economics


Thomas J. Miceli 1. INTRODUCTION Economic models of law enforcement beginning with Becker (1968) have primarily focused on the role of criminal punishment in deterring crime. This approach to the determination of optimal criminal penalties relies on the rational offender assumption, which maintains that potential offenders decide whether or not to commit an illegal act by comparing the gain from commission to the expected punishment. Although some may doubt the validity of this assumption, there is a growing body of empirical evidence to support it (as reviewed in the next section). One of the clearest policy implications emerging from this model is that fines should be relied upon to the maximum extent possible before imprisonment is used. The obvious reason is that, while fines and prison are equally capable of deterring rational offenders, fines are costless to impose while prison is costly. The use of prison should therefore be limited to those offenders whose lack of wealth makes the threat of a heavy fine ineffective as a deterrent (Polinsky and Shavell 1984). The extensive use of prison in actual punishment schemes, however, appears to be inconsistent with this prescription. One explanation for this practice is the desire for equal treatment of rich and poor offenders, given that the economically efficient punishment scheme would essentially allow rich offenders to “buy their way out of jail” (Lott 1987). Another explanation is that prison serves an incapacitation function; that is, it allows the state to detain those offenders who are expected to commit...

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