The Economics of Cruel and Unusual Punishment

It has sometimes been argued that one way to reduce the costs of law enforcement would be to reduce the probability of detection and conviction (hence saving those costs), while at the same time increasing the size of the punishment. Following this strategy would keep the expected costs (to a risk neutral criminal) of committing a crime constant and hence keep the deterrence level constant; it would have the benefit, though, of reducing costs to the rest of society.There are some well-known objections to such a policy. One such objection deals with marginal deterrence: A convicted murderer serving a life sentence with no chance of parole in a jurisdiction which bans capital punishment has nothing to lose from killing a prison guard—there is no marginal deterrence to the commission of a more serious crime or any additional crime for that matter. In fact, so long as there remains any upper limit to the amount of punishment that can be inflicted upon a convicted criminal, the only ways to create some type of marginal deterrence are to reduce the punishments for less serious crimes, which will either reduce the deterrence of those less serious crimes, or alternatively to require the use of more of society's scarce resources to increase the probabilities of apprehension and conviction.It is possible to reduce this marginal deterrence problem, however, by practicing cruel and unusual punishment on perpetrators of serious crimes, i.e. by raising the limits of allowable punishment. Anecdotal evidence suggests this practice is followed unofficially with child molesters and killers of prison guards and hence provides some additional deterrence against these crimes.Despite the theoretical validity of this argument, our society has chosen to impose a constitutional ban on cruel and unusual punishment. Furthermore, over time we seem to have lowered the threshold of what is considered cruel and unusual. Following Dr. Pangloss, the concluding section of the paper examines why rational maximizers would choose to give up this additional potential deterrence. The explanations depend upon an assumed positive income elasticity of demand for humanitarianism or for insurance against the costs of punishing the innocent. While there are some reasons to accept the humanitarianism argument, the insurance argument seems more persuasive.     

TESTING A BAYESIAN LEARNING THEORY OF DETERRENCE AMONG SERIOUS JUVENILE OFFENDERS*

The effect of criminal experience on risk perceptions is of central importance to deterrence theory but has been vastly understudied. This article develops a realistic Bayesian learning model of how individuals will update their risk perceptions over time in response to the signals they receive during their offending experiences. This model implies a simple function that we estimate to determine the deterrent effect of an arrest. We find that an individual who commits one crime and is arrested will increase his or her perceived probability of being caught by 6.3 percent compared with if he or she had not been arrested. We also find evidence that the more informative the signal received by an individual is, the more he or she will respond to it, which is consistent with more experienced offenders responding less to an arrest than less experienced offenders do. Parsing our results out by type of crime indicates that an individual who is arrested for an aggressive crime will increase both his or her aggressive crime risk perception as well as his or her income‐generating crime risk perception, although the magnitude of the former may be slightly larger. This implies that risk perception updating, and thus potentially deterrence, may be partially, although not completely, crime specific.     

Using accounting data in cartel damage calculations: blessing or menace?

Standard methods for calculating cartel-damage rely on data of prices charged and quantity sold. Such data may not easily be available. In this paper, it is shown that accounting data can be used for computing a lower bound for cartel-damage. Previous literature indicates that economic profits can hardly be inferred from accounting data. Therefore, it is shown under which econometrically testable assumptions on accounting costs a meaningful lower bound for cartel-damage can consistently be estimated when using accounting data. However, the aggregation-level and the publication-frequency of accounting data pose a challenge to the estimation of cartel-damage. A further challenge is to appropriately reflect the strength respectively effectiveness of the collusive agreement in the specification of any such estimation.     

The influence of police interventions and alternative income sources on the dynamic process of choosing crime as a career

This paper demonstrates how a rational process of choice may be influenced by both deterrence forces and economic opportunities. This choice is modeled by a dynamic (Markov) process which captures self-sorting by youth among the categories of innocents, desisters, and persisters. in crime. A key to the results is the introduction of the perceived probability of punishment and its influence on the sorting process. The analysis shows how this force and the availability, or lack of, economic opportunities or income sources modify transition probabilities. The long-run consequences will be a larger subpopulation of individuals who have experimented with crime but subsequently revert to crime-free behavior and a smaller subpopulation of individuals who commit a greater share of crime. Empirical evidence is based on data from the New Youth Cohort of the National Longitudinal Surveys.     

Methodological artifacts in tests of rational choice theory

Criminal decision making is an inherently natural and highly individualized process; however, rather than allowing participants to self-identify the costs and benefits that impact their own decisions to offend, rational choice researchers have typically provided participants with a uniform list of consequences to consider. Indirect evidence suggests this technique may alter the participants’ perceptions of consequences, yet no study to date has examined this supposition directly. In the current study, participants were randomly assigned to experimental conditions in which they either received a list of traditional costs and benefits to assess or were asked to self-generate their own list to assess. As in past research, when participants were allowed to self-generated consequences they identified several “novel” costs/benefits that have certainty/severity rating comparable to many of the traditionally examined consequences. Results also showed that consequences are more likely to be perceived as possible outcomes (i.e., receive a non-zero probability) when they are presented by researchers than when they are self-generated. Finally, the average certainty and severity of negative consequences do not differ across condition, while ratings of the certainty and value of benefits from crime are relatively lower when they are presented by researchers. Implications for rational choice theory and survey research in criminology more broadly are discussed.     

THE ARTIFACT ISSUE IN DETERRENCE RESEARCH

The often-observed negative correlation between crime rates and estimates of the objective certainty of a legal punishment is interpreted by some as support for the deterrence doctrine. Others, however, characterize the correlation as inherently artifactual because the variables being correlated have a common term (number of crimes is the numerator of the crime rate and the denominator of the objective certainty variable). Still others argue that the correlation is not inherently artifactual but is nevertheless spurious because of measurement error. This paper shows that the negative correlation is not inherently artifactual and provides evidence to support the measurement error interpretation. Unfortunately, however, there is no definitive way to demonstrate whether the negative correlation between the crime rate and the objective certainty of punishment rejects deterrence or merely measurement error.     

事实认定的概率分析

根据概率分析所涉及证据数量的不同,事实认定概率分析可分为单一证据维度和证据组合维度。在单一证据维度中,司法鉴定领域会不断涌现像DNA证据那样兼具实证统计数据和高度科学确认度的统计概率证据。在证据组合维度中,事实认定不可能通过数学推理实现,其原因主要有：事实认定过程复杂,数学推理难以模拟;数学推理并非司法证明思维的＂母语＂,而是一门需要翻译的＂外语＂;数学推理会通过＂量＂上的运算模糊、混淆乃至掩盖了＂质＂上的差别。     

Medicaid program; Medicaid eligibility quality control (MEQC) program requirements--HCFA. Final rule with comment period

This rule revises the regulations governing the Medicaid eligibility quality control (MEQC) program to include more specific program requirements and to establish new timeframes for completing and reporting MEQC case findings to HCFA. The rule also establishes a performance-based threshold for States to meet before HCFA will consider good faith waiver requests of disallowance of Federal financial participation (FEP) in erroneous Medicaid payments and provides more definitive criteria for evaluating States' good faith efforts to meet the national standard error rate. In addition, the rule makes several technical changes and provides that a State may rebut its projected error rate only when it can present evidence that its projected error rate was based on erroneous data. These revisions will strengthen the basic MEQC program and provide flexibility and incentives to States to produce accurate Medicaid eligibility determinations.     

Sometimes Ignorance is Bliss: Investigating Citizen Perceptions of the Certainty and Severity of Punishment

Deterrence lies at the heart of the criminal justice system and policy. There is a lack of information on citizen??s perceptions regarding a critical element of the deterrence process as it manifests through the communication of sanction threats. This study uses data from over 400 adults to examine their knowledge regarding the probability of detection and the average punishments for DUI, and also assesses the contribution of demographic and theoretical variables in predicting perceptions of detection probabilities and punishment estimates. Results show that persons over-estimate the likelihood of detection and provide higher estimates for average sentence lengths, but very few variables predict deterrence perceptions. An investigation of the resetting effect shows that persons tend to lower the estimated likelihood of punishment after experiencing a punishment. Deterrence may work better if researchers and policy officials understand what influences these perceptions and how they may be modified.     

概率性证据研究中的认识悖论

在南昌大学原校长周文斌受贿案中，其机械使用概率论解释质疑控方证据的做法，存在严重错误，由此引发了关于概率证据理论的一些思考。虽然英美证据理论研究中，占统治地位的对证据和证明过程的描述是概率性的，但艾伦教授认为数学世界与人类事务世界之间可能并不相似。在进入大数据时代的今天，司法实践对于精确性和可操作性的需求，由量化带来的对证明责任和当事人主张的清晰表达，以及对证明过程提供的规范性指引，都刺激了大量的试图使用概率性理论解释审判过程的某个方面的论证尝试。然而，在概率性语言试图描述证据及证明活动时，检察官及辩护律师谬论、结合悖论、相关性悖论等认识错误的出现却带来了对事实认定活动与概率理论之间矛盾冲突的反思，或者说并非是对概率性理论的批判，而是对法学理论家们就概率性理论的特定使用的批判。     

When Deterrence and Death Mitigation Fall Short: Fantasy and Fetishes as Gap‐Fillers in Border Regulation

Drawing on fieldwork and political theory with Lacanian psychoanalytic influences, this article analyzes how fantasy and fetishes help sustain strategies shown to be no solution to U.S. border control problems. More than a decade after the official launch of the border control paradigm of “prevention through deterrence,” predicated on the assumption that ramping up walls, barriers, policing, and the human costs of border crossing would deter, there has been scant evidence of deterrence and much evidence of diversion of migrants to more dangerous crossing points where death rates have soared. Attempts to mitigate the cost to life have also proved ineffective but have persisted alongside the policy of diversion. The article is based on research in a region where the reality of diversion and death instead of deterrence was lived but where people still pursue projects of barrier‐building and death mitigation that they know to be ineffective. The article analyzes how fantasy fuels action despite knowledge and occludes a traumatic element around which the symbolic order of border law is structured: the foundation of “good life” with its bounty of rights, privileges, and opportunity on the exclusion of basic life denuded of the entitlements that make the good life sweet. The article also examines how fetishes are used to cope with unrealized hopes and to diffuse the impact of the traumatic knowledge that good life is undergirded by the exclusion and even death of basic life.     

AN EXPERIMENTAL INVESTIGATION OF DETERRENCE: CHEATING,SELF‐SERVING BIAS,AND IMPULSIVITY*

This paper reports results from a randomized experiment in which 256 participants recruited to complete a survey could earn extra payment by cheating on a quiz. We report the first deterrence experiment that incorporates significant elements of situational and individual difference theories of crime into a single analytic framework. Consistent with extant deterrence research, the prevalence of cheating was lower when detection was more certain but not when the penalty was more severe. Further, cheating was more likely among participants with stronger present‐orientation, or who were prone to self‐serving bias.     

How the probability of a false positive affects the value of DNA evidence

Errors in sample handling or test interpretation may cause false positives in forensic DNA testing. This article uses a Bayesian model to show how the potential for a false positive affects the evidentiary value of DNA evidence and the sufficiency of DNA evidence to meet traditional legal standards for conviction. The Bayesian analysis is contrasted with the "false positive fallacy," an intuitively appealing but erroneous alternative interpretation. The findings show the importance of having accurate information about both the random match probability and the false positive probability when evaluating DNA evidence. It is argued that ignoring or underestimating the potential for a false positive can lead to serious errors of interpretation, particularly when the suspect is identified through a "DNA dragnet" or database search, and that ignorance of the true rate of error creates an important element of uncertainty about the value of DNA evidence.     

Economic Conditions, Deterrence and Juvenile Crime: Evidence from Micro Data

This article investigates the determinants of criminal activityamong juveniles in the United States. It uses a survey of U.S.high school students conducted in 1995, which provides detailedinformation on offenses; personal, family, and neighborhoodcharacteristics; as well as deterrence measures. The determinantsof selling drugs and committing assault, robbery, burglary,and theft are analyzed separately for males and females. Theresults provide some evidence that juveniles respond to incentivesand sanctions. Employment opportunities and policies designedto increase the probability of arrest may be effective toolsfor reducing juvenile crime.     

民事责任的预防功能

本文以经济学中的价格市场理论和外部性理论为工具,从预防角度考察民事责任（以损害赔偿为主）的社会功能,并指出为达到最佳预防目的,在两种不同的情况下,致害人应负损害赔偿数额的原理与计算方法。     

Graduated penalty scheme

Evaders of any dues such as local council tax, motor vehicle tax, tv license fees, etc., if detected, can pay promptly the dues plus any fine or postpone, which usually means a larger fine, and potentially imprisonment if payments are not made in full. Dominant among the likely reasons for this graduated penalty scheme are ‘default tracking costs’ and ‘imprisonment costs’. Although in conflict with the state’s basic objective of deterring evasion, a graduated penalty scheme may emerge as an optimal balance between the dual objectives of deterrence and settlement delay minimization. Based on a welfare-maximizing objective where the state determines optimal monitoring intensity and time profile of fines, an intuitively plausible condition is derived such that the fine scheme is of the graduated type.     

Contextual Compliance: Situational and Subjective Cost‐Benefit Decisions about Pesticides by Chinese Farmers

This article analyzes how cost‐benefit calculation influences compliance with pesticide regulation by Chinese farmers. Building on a study including 150 farmers and experts, it studies how operational costs and benefits and deterrence affect compliance. Moreover, it studies what variation in cost‐benefit perceptions there are with different types of rules, farms, and villages. It finds that, in this context, cost‐benefit calculation matters for compliance; with operational costs and benefits being more clearly related to compliant behavior than deterrence. It highlights that perceptions about costs and benefits are situational and vary along the type of legal rule and the type of regulated actor. It also shows that such perceptions are individually subjective, as even with similar rules and similar types of actors, perceptions vary. The paper concludes by stating expectations on how the situational and subjective nature of cost‐benefit calculation can inform regulators seeking to enhance compliance.     

Relying on the Information of Interested--and Potentially Dishonest--Parties

This article investigates the role of evidence production inthe regulation of private behavior via judicial and administrativeprocess. It proposes a model in which the law makes the agent's"fine" depend on the presentation of evidence whose productioncost, in turn, depends on how the agent has behaved in the regulatedactivity. This view of evidence production has several notableimplications, including that truth finding has no direct rolein deterrence, that nonfalsifiable evidence, even when available,is unlikely to be the best choice for the system, and that "overdeterrence"may well be cost-effective.     

Prisons,Proportionality and Recent Penal History

A leading aim of the Criminal Justice Act 1991 was to install the principle of proportionality as the primary rationale for sentencing and to bring about a reduction in the use of imprisonment.  In the decade that followed the prison population in England and Wales rose steeply.  This article examines the reasons for the rising use of prison, in order to assess whether proportionality (or ‘just deserts’) was tried and failed.  It argues that in practice the proportionality principle was overwhelmed by other influences, and that deterrence and incapacitation were the main drivers of the increasing use of imprisonment.  The article goes on to argue that proportionality theories have within them the resources to produce penal moderation, notably the ‘drowning out’ argument, the human rights argument, and decrementalism.  The article concludes by rejecting the claim that proportionality theories are likely in practice to result in escalating punishment.     

共谋共同正犯论

在实行行为与共犯理论实质化思潮影响之下,日本刑法对共谋共同正犯的争论早已由"是否当罚"转为"如何处罚"的问题。在我国研究共谋共同正犯,有助于构建精细化的正犯与共犯区别理论,实现对主犯核心共犯体系的反思,并推动我国犯罪论体系阶层化的前行。对共谋共同正犯的成立,应从客观上对其条件进行细化,以尽量限定其处罚范围。二人以上共谋事实的存在,是其责任要件;实行的必要性及共谋者对实行行为的实质分担性,是其客观违法要件。共谋共同正犯实行部分行为全部责任的法理;实行者既遂时,共谋共同正犯亦应负既遂罪责任;共谋共同正犯具有独立的被处罚性。承认共谋共同正犯概念,是对实行行为扩大解释的结果,并不违反罪刑法定原则。