Crime and Punishment

February 18, 2008

A simple question – what is the purpose of punishing criminals?

A common answer is that you want to deter future criminals by showing what will happen when they commit a crime. Punishment as deterrent. Makes sense, right? Well…

The obvious problem with this is that you’re not showing what will happen when they commit a crime – you’re showing what will happen when they commit a crime and are caught. In a sense, this turns it all into a game of odds. As a potential criminal, you just evaluate what you will gain from committing the crime, what you will lose from being caught, and what your chances of getting caught are. If it ends up being an average gain for you, commit the crime; otherwise, don’t.

Following this reasoning, “an eye for an eye” is only effective if your chances of catching the criminal are greater than 50%. Otherwise, he gains an eye if he succeeds, the changes of which are >50%, and he loses an eye if he fails, the chances of which are <50% – the estimated result is a gain of a fraction of an eye.

Of course, most people don’t actually consider taking an eye from an enemy to be exactly equal to losing one of their own eyes. They’d rather have the eye themselves even if it leaves the enemy with the eye. But consider theft – there, you actually do gain something from the crime. Let’s say I’m planning on stealing $10,000. If I get caught, I’ll have to give it back, and I’ll go to jail for, say, 10 years. Let’s throw in that I’ll pay a $10,000 fine. So if I get caught – if I lose the crime game – I lose $10,000 and 10 years of my life. If I win, I gain $10,000.

Sure, that looks like a bad deal, but only if my chances of getting caught are fairly high. Let’s say I value a year in prison at $50,000 per year (in other words, that’s how much I’d be willing to pay to avoid that punishment). So, in defeat, my total losses would be $510,000, and in victory, my total winnings would be $10,000. That means that if my chances of success are over approximately 98%, I should commit the crime – it averages out to a benefit, not a loss. It all depends on how much risk I’m willing to take on, of course, but to reduce risk just ensure that your chances of success are higher. 99%? 99.5%?…

The point is that some people will have those chances at success – or at least they will think they do – and so people will still commit crimes. Even with a literal eye for an eye – at some point, if I want to harm the other person badly enough and I think my chances of success are high enough – I will take his eye even if there’s a chance of it costing me mine. It’s actually an even better deal than the theft because they can’t make me give the eye back.

And, as Saint Thomas More pointed out, you can’t just increase all punishments to be extremely harsh because then people have no incentive to commit lesser crimes not greater. If I’ll get hanged for stealing, why not kill the witnesses so there’s less of a chance of getting caught? If I get caught, I die either way. Might as well decrease the chances of that happening. So you need punishments that are fairly reasonable. But then people only have to have good, not even great, chances of success before it’s worth it for them to commit crimes – 70%? 60%?

So how exactly is punishment a deterrent? It deters criminals who were likely to get caught. It doesn’t deter the ones who will probably succeed. But that’s really what we need to do. They’re probably the more dangerous kind anyway. An executive at a large company who can steal $1,000,000,000 and probably get away with it is far more dangerous than someone who can rob a convenience story, get $100, and have a fairly good chance of getting caught for it. “Deterrence” might stop the latter, but it won’t stop the former.

Anyway, that’s why I’m wary of the idea that punishing criminals is useful as a deterrent. So what is it good for? Education? Retribution? The former sounds absurd (the criminals who get caught aren’t the ones who need to be convinced that crime is wrong) and the latter potentially blasphemous (who are we to decide who is guilty and deserves punishment?). It might well be that deterrence is really all that punishing criminals is good for – the idea being that you don’t have to deter all the criminals, just enough to have some semblance of order in your society. Anarchy tends to be unpleasant.

But I suspect that so long as we have to punish criminals at all, there’s no hope of creating some sort of crime-less society… that would, after all, be a Utopia, a no-place. And any claim that a change in how criminals are punished will somehow drastically reduce crime should be examined very, very carefully. The only way to reduce crime is to reduce the criminals’ chances of success.


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