Robert J. Stonebraker, Winthrop University
The Joy of
Economics: Making Sense out of Life
Robert J. Stonebraker, Winthrop
University
How Tough is too Tough?
Off with their heads!
.....Queen of Hearts in Lewis Carroll's Alice in Wonderland
Wayne, a faculty acquaintance in another department, complains that our university is too soft on crime1. Students lie. Students cheat. Students steal. Students violate all sorts of university rules and local statutes.2 According to Wayne, the proximate cause is wimpy governance: too many touchy-feely faculty members and administrators who are too lenient and impose sanctions which are too mild.
His solution is to get tough. Residence hall theft? Automatic expulsion. Underage drinking? Automatic expulsion. Cheating or plagiarism? Automatic expulsion. According to Wayne, it's simple cause and effect. If penalties go up, crimes will come down. I am not so sure.
Optimal Crime
First of all, I'm not sure campus crime should drop. Heresy? No. To an economist, crime prevention is like any other activity. It creates undeniable benefits, but also creates costs. Think of hot dogs (yum!). Few foods can match the splendor of freshly grilled hot dogs. They are a true culinary delight. But even fanatic frankfurter fans like me have limits.
Do I want lots of hot dogs? Yes. Do I want all that I can possibly produce? No. Am I willing to trade in my wife, my home, or my car for one more bite? No. I only want hot dogs as long as the benefit they bring covers the cost they impose, no matter how much ketchup might be slathered over them.
Hot dogs are not free, neither is crime prevention. Do I want all the crime prevention I can possibly produce? No. Am I willing to trade my wife, my home, or my car for one more piece of crime prevention? No. Like hot dogs, crime prevention should not be produced unless its benefit covers its cost.
Even if harsher penalties reduce crime, they are not always desirable. How far should we go? Should we advocate public flogging for jaywalkers? Should we execute those who litter? At what point does the cost exceed the benefit? At what point do we reduce too much crime? I do not know the answer. But just we can have too many hot dogs, we can have too much crime prevention.
Probability of conviction
Emulating Wayne's sentiments, many U.S. states have moved to increase criminal penalties in recent decades. Many have enacted "three-strike" laws that impose mandatory life sentences on those convicted of three felonies. Others have enacted "truth-in-sentencing" laws that restrict the ability of law enforcement officials to release criminals on early parole.
These harsher penalties might help satisfy society's urge for revenge or retribution, but they may not reduce crime. Potential criminals certainly consider possible penalties, but they also consider the probability of being caught and convicted. Imagine zooming along a highway at 10 miles-per-hour above the speed limit. Which is more likely to slow you down: a sign promising harsh penalties for speeders, or the sight of a police cruiser in your rearview mirror? Me, too. Penalties matter, but likely apprehension matters more. Even capital punishment is no deterrent if the chance of being caught and convicted is zero. When pushing for stiff sanctions, people like Wayne ignore a critical drawback: stiffer sanctions lower the chance of conviction.
Why? First, stiffer sanctions change the behavior of police officers. At the college level, professors prefer to be seen as mentors rather than as disciplinarians. Rightly or wrongly, many are reluctant to get students "into trouble." A professor who might happily administer a light slap-on-the-wrist to a suspected plagiarist could recoil at the thought booting the student out the door. If reporting the incident means certain expulsion, many incidents will go unreported. Professional police officers face similar dilemmas. When the only other option is punitive punishment, officers might choose to handle more offenses "off-the-record."
Second, stiffer sanctions change the behavior of criminals. When potential penalties rise, potential criminals become more vigilant. Among college students, underage drinkers will avoid public venues and/or pay for more sophisticated forged ID cards. Plagiarists will be more creative and more carefully cover their tracks. Vandals will choose later hours and, perhaps, use disguise. Costly precautions that will be ignored in a slap-your-wrist regime become efficient strategies in an automatic expulsion regime. And, if they are apprehended, criminals will fight harder to defend themselves. Faced with a potential letter of warning, few criminals mount expensive and intricate legal game plans. But when sanctions stiffen, so does the defense. Students faced with expulsion routinely enlist private attorneys to do battle with university judicial boards. Criminal defendants facing a potential death sentence expend all available resources.
Third, stiffer sanctions change the behavior of jurors. Reasonable doubt is a slippery concept. As jurors, our demand for evidence will vary with potential penalties. Give me a traffic case with a maximum $25 fine and I can be tough as nails. Convicting an innocent defendant is relatively costless. I can live with a possible mistake. But give me a murder trial with pending capital punishment, and I will back off. If I ever want another night of restful sleep, I will demand incontrovertible proof before penning "guilty" on a ballot.
Finally, stiffer sanctions change the behavior of prosecutors. Prosecutors have considerable discretion with respect to what charges are pursued in court. In states with three-strike laws in effect, prosecutors might be less inclined to bring felony charges to trial; perhaps because they worry about the chance of conviction and perhaps because they feel the potential penalty is too severe. At any rate, prosecutors in such states are twice as likely to lower a felony charge to a misdemeanor.4
In short, getting tough might backfire. Harsher penalties are less likely to be imposed. We wimp out. Fewer criminals are charged, fewer are apprehended, fewer are convicted.5 Potential scoundrels might shrink at the sight of stiffer sanctions, yet salivate at the lower probability of conviction. If the first effect dominates, Wayne's get tough policy will work. If the second effect dominates, stiff penalties are counterproductive; crime will increase. If the second effect dominates, more lenient penalties make sense.
Which approach is better? Should we rally behind the cry of law and order? Or should we preach compassion and forgiveness? According to economist James Andreoni, the answer is neither. Examining eleven different categories of criminal activity, Andreoni could find no significant impact in either direction. Stiffer penalties had no net deterrence effect. But neither did they increase criminal activity.4 Andreoni's message seems simple. Let well enough alone.
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Notes:
1. The names have been changed to protect the innocent; or are they the guilty?
2. Faculty and staff, even Wayne, also break the law. However, Wayne seems less concerned about his own transgressions.
3. See Andreoni, James, "Criminal Deterrence in the Reduced form: A New Perspective on Ehrlich's Seminal Study," Economic Inquiry, volume 33, number 3, July 1995, pp. 476-483. Andreoni finds that an increase in the average length of prison sentences causes a significant decrease in the probability that an individual defendant will be convicted.
4. Bjerk, David, "Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion under Minimum Mandatory Sentencing," Journal of Law and Economics, volume 48, number 2, October 2005, pp. 591-626.
5. Andreoni, op. cit. The estimated impacts were positive in six categories and negative in five. However, none of the impacts were statistically significant.
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Testing Yourself
To test your understanding of the major concepts in this reading, try answering the following:
1. Do we want as much crime prevention as possible? Explain why or why not.
2. Other than by imposing stiffer penalties, how might we effectively deter crime?
3. Identify and explain four different ways in which stiffer penalties might impact the probability of conviction.