The Folly of Desperation as Mitigating Factor

GunConventional wisdom tells us that criminals who perpetrate their crime out of desperation should be shown mercy. The crime is more excusable. You can almost imagine yourself doing the same if your back was against the wall.

But the reality is that if crimes committed out of financial desperation were punished more harshly, the threat of crime would be diminished.

Individuals should have their property protected, but using the minimal force of the law – to keep costs of enforcement down, and not inflict unnecessary harm either to guilty or innocent party. Punishments should be calculated in order to reflect the marginal cost to society of theft, which in practice will deter most sensible criminals.

So the only crimes committed will be perpetrated by really desperate people – those who benefit more from the theft than the risk-adjusted punishment by the law. Under this theory, this would represent an efficient level of crime.

Society benefits overall from the resultant redistribution of wealth, as the benefit of the crime (to the criminal) is greater than the cost to society from the theft (which by hypothesis is less than the punishment). In this way, the penal system acts as a price mechanism and crime constitutes social welfare.

Not quite. Even the most ardent utilitarian must recognise that crime is not a zero-sum game. Money spent on security measures constitutes deadweight loss when viewed at the societal level.

The threat of a single individual who might steal a car can motivate many people to install security measures at considerable expense to themselves. It’s individually rational from their perspective, insuring against the risk of theft. But if everyone took that money and gave it to the prospective thief, we could probably leave our doors open.

The criminal is only a threat because he stands to benefit so much from the crime due to his desperation. He has no reasonable alternatives presumably, and the opportunity cost of prison is low because of his meagre earning potential. The precise reasons which provoke your sympathy, are those which make him a high-risk criminal candidate.

Meanwhile, the most modest punishment would be sufficient to deter a financially-secure individual from committing the very same act. He stands to lose much more from any time spent in jail, so we don’t need to spend many resources to intimidate his ilk.

Crime - SQ

If we can deter these financially-secure people with less stringent sentences, it doesn’t seem just to treat them like the most hardened criminal. After all, there’s still the possibility that you might be wrongly imprisoned or punished for a crime. They should be threatened with the most lenient sentence possible to deter them, for the same reason that minimal impairment is adopted in the first place.

As for the most desperate criminals, they should be given harsher sentences – and duress should not be considered a mitigating factor, as it is currently. People should know that when crime seems most attractive, that’s precisely when it’s the worst choice to make.

Crime - New

What would the outcome be? Well, you wouldn’t be wasting resources over-punishing those who are currently less desperate than average. Resources can be targeted at those who need to be dissuaded from a life of crime, effectively. We no longer have to increase everyone’s sentence in order to deter one more crime.

The interesting corollaries of this theory include more diverse prisons, because no single socio-economic group is at greatest risk of perpetrating crime. Initial entrance to prison is also no longer devalued as a deterrent, because multiple offenders are less likely.

So what if the system is two-tier when viewed within a certain paradigm? The current system is two-tier when you consider that criminal justice doesn’t take into account the different damage done to individuals by the same prison sentence. People with peanut allergies would cry foul if the punishment for crime was eating peanuts, even though most of us would be cool with that.

© The Free Marketeer 2009

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