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					                    Part F-I


   The Economic Theory of Crime
          and Punishment


           Introduction

           Traditional Theory of Criminal Law


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                    Objectives
    There are two fundamental questions:



    1.     What acts should the state punish?

    2.     To what extent should a given act
           be punished?



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                 Introduction
    We are now considering an area of
     Public Law

    Why are these issues not simply
     handled as part of tort law?

    Historically they were included as part
      of the ‘common law of crimes’


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‘Common law of crimes’ has been replaced by
  ‘criminal statutes’
             - criminal law has been codified



Both the common law of crimes and the more
  recent criminal statutes are premised on the
  traditional theory of criminal law

    embodied in legal tradition and scholarship


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      Traditional Theory of Criminal Law

1. Intended wrongs (crimes) versus accidental wrongs (torts)

2. Public nature of harm (in addition to the private tort)

3. The plaintiff is the state not a private individual

4. The standard of proof is higher in a criminal matter as
   opposed to civil action

5. A guilty defendant is punished, as opposed to simply
   making restitution (making the victim whole)


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Broadly, the traditional theory is based on the
  simple notion:

           ‘if someone does something wrong and
           they are found guilty, they should be
           punished and they should be punished in
           proportion to the seriousness of their
           crime’

  The traditional theory focuses on the individual
   and the act.


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This is not a good starting point for the economic
  analysis of crime.

Economic theory focuses on societal welfare (takes
  the perspective of society as a whole

Very simply economic analysis of crime starts with:

    An act should be made a criminal act if doing
    so enhances ‘social welfare’. An act should be
    punished to the extent that deterring that act
    maximizes ‘social welfare’.

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                          Criminal Intent

    Accidental harm vs. intentional harm mens rea
    ‘a guilty mind’ - Scale of Culpability

       thoughtful           thoughtless                 mens res


         careful       negligent      reckless     intentional        cruel

0                                                                                 1
       blameless                at fault                     guilty


               Legal standard              Civil wrong vs.
               of precaution               criminal wrong
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                      Public Nature

Property, contract and tort law generally deal with
  private harm imposed by one individual on
  another

In criminal law more of the harm is of a public
  nature.

           - a murderer kills his/her victim but also
           causes a general increase in fear and a loss of
           a sense of security for all members of society.

Three points:
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1. This ‘public’ nature of a criminal act is why in criminal law
   the plaintiff is the ‘the crown’ (the government) as opposed
   to the specific person harmed in the criminal act (victim).

    In civil law the ‘victim’ is always the plaintiff

    Traditionally the victim had very little, or no role in the
    prosecution or punishment of the crime (mostly as a
    witness).

    More recently the victim might be consulted on charges to
    be laid and might a give ‘victim impact’ statement at
    sentencing – might even be compensated


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2. The notion that criminal acts harm the general public allows
   for the possibility of ‘victimless crimes’ (drugs, gambling,
   prostitution).

        - parties to these transactions enjoy mutual gains
   (economic theory would find no basis for such acts being
   classified as crimes)

        - traditional theory of crime argues that there are
   victims (‘society as a whole’) whose peace and security is
   threatened (morality, public health, social welfare costs)




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3. What if someone ‘attempts’ to harm another but fails.

   - there is no loss, no actual injury, no basis for a tort

   - but traditional criminal theory argues that the ‘attempt’
   to harm causes a fear and loss of security - the attempt
   should be punished, even if it failed




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               Standard of Proof

Standards of proof

Civil case – ‘preponderance of the evidence’
             (plaintiff is more convincing than the
               defendant - just tips the scales of
                     justice) - 51%

Criminal case – ‘beyond a reasonable doubt’ (clear
                     and convincing evidence) -
  95%/99%
   Why the difference?

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      Traditional Theory of Criminal Law
              – Standard of Proof
1. Convicting an innocent person seems worse than letting a
   guilty person go free (Type I vs. Type II error).

Hypothesis (H): Mr. X is guilty

                     Accept H            Reject H
                     (convict)           (don’t convict)

     H is true       Correct verdict     Type I error
     (guilty)

     H is false      Type II error       Correct verdict
     (not guilty)

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The higher the standard of proof, the smaller the
  likelihood of committing a Type II error
  (convicting an innocent person)



but the greater the likelihood of committing a Type I
   error (letting a guilty person go).



Society’s standards in this respect vary over time



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    2. The prosecution in a criminal matter can bring
    the full force of the state (prosecutor/police/etc.)
    and all its resources down on the defendant

           - heavier burden of proof helps to offset this
           advantage

        Note that at times private individuals can
    bring considerable resources to the court room




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        Traditional Theory of Criminal Law
                   – Punishment
Punishment:
  - Incarceration (jail)

    -      Restriction of movements (bail terms, house
           arrest, etc.) could be almost anything – no
           alcohol, no computers

    -      Fines

    -      Corporal punishment - beatings, mutilation,
           death
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Compensation in civil law aims to restore the victim
  to his/her previous level of well-being.

Punishment in criminal law is intended to harm the
  injurer but without making the victim better off.

(There is some very slow movement in this area.)

In principle, punishment and compensation might
  be substitutes or both could be imposed.




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Perfect compensation: a sum of money that makes
  the victim indifferent as to having suffered the
  injury or not having suffered the injury.

Consider:

Perfect disgorgement: a sum of money that makes
  the injurer indifferent to having caused the injury
  or not having caused the injury.




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In criminal law, monetary punishment (fines) are intended to
   be a sum of money that makes the potential criminal prefer
   to not commit the crime

    - intended to remove whatever incentive the potential
    criminal has to commit the crime



Aside: given the above, does a schedule of fixed fines ever
   make sense?

    Speeding ticket of $200 or

               - 1% of income
               - 5% of the value of your car

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      Traditional Theory of Criminal Law
               – Some Problems
Traditional legal theory of crime:

    - does not provide a model of predictive behaviour
                 (it aims to control behaviour but does
                   not explain the behaviour itself)

    - does not provide a clear objective for criminal law – ‘stop
     people from doing bad things’
                 (no guidance as to what should be criminal)

In what follows we will try to:

    - distinguish between civil and criminal prosecutions
    - develop a predictive model of criminal behaviour
    - propose a clear objective for criminal law (Surprise
     Surprise - minimize the social costs of crime).

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