Principle of Proportionality in Sentencing and Economic Approach in Criminology
| Author | Jaan Ginter |
| Position | Docent of Criminology |
| Pages | 142-146 |
Page 142
Economic approach is not a novelty in criminological research. Two important contributors to criminology during the eighteenth and nineteenth centuries, Beccaria and Bentham, explicitly applied an economic calculus. Unfortunately, such an approach lost favour for a significant period of time from the end of the nineteenth century until during the 1960s when economists turned their attention to the field of criminology. Then followed a further period of relative silence in this field, but the second half of the nineties has witnessed a vitalisation of the economic approach in criminology1. In this paper application of the economic approach on the principle of proportionality in sentencing is analysed.
There is totally unanimous support for the idea that there must be proportionality between the crime committed and the sentence to be served. But as to what characteristic of the crime the sentence should be proportional to, opinions differ. There are at least three different viewpoints to measure the crime: one, from the viewpoint of the effect on the offender; second, on the society as a whole; and third, on the victim. From the different standpoints, the proportions are seen remarkably differently.
The first standpoint was proposed already by Jeremy Bentham. In his "Principles of Morals and Legislation" he asserted that "the value of the punishment [f] must not be less in any case than what is sufficient to outweigh that of the profit of the offence [c]"2.
(1) f c Gary S. Becker supports in his almost as famous "Crime and Punishment: An Economic Approach"3 a much more sophisticated position: "a person commits an offence if the expected utility to him exceeds the utility he could get by using his time and other resources at other activities" and that "[s]ome persons become 'criminals', therefore, not because their basic motivation differs from that of other persons, but because their benefits and costs differ". While considering only the effect on the offender, the last position would mean that the punishment should be as severe as needed to cause the offender disutility (d) that would outweigh the expected utility of the crime (c) minus utility he/she could get by using his/her time and other resources at the most efficient available legal activities (l).
The expected utility of the same offence is different for different offenders. E.g., the expected utility of speeding (saving a few minutes) is higher to the richer offender4.And consequently it is reasonable to punish him/her more severely (use of day-fine system serves very conveniently this purpose). But there are plenty of offences, where utility is almost exactly the same to all offenders independent of their extremely different attributes. E.g., stealing $100 provides the same amount of money to a poor man as a rich man and consequently it is not so easy to demonstrate that the rich man should be punished more severely as it is effected by use of day-fine system.
As offenders usually do not have access to efficient, legally recognised means to achieve their goals and the time allotted for illegal activities is most often not extensive, we may presume that l is marginal. Hence, it should be achieved that,
(2) d > c Becker makes it quite blatantly clear5 that, as we are able to punish only a fraction of all offenders, the disutili-Page 143ty for a single offender is not the punishment meted out for the concrete offence committed (f), but the punishment discounted for the (usually quite low) probability of conviction (p).
(3) d = pf > c The probability of conviction depends on the probability of reporting an offence to police (the most recent Estonian studies on victimisation revealed that the probability of a theft to be reported is 0.2766) multiplied by the probability that the report will result in apprehension (0.0787) and conviction. Hence, if the offence is theft of $100, the punishment should be a fine 1/p*100 = 46.5*100 = $4650
The effect of probability has been analysed most scrupulously. In his recent study, Richard Craswell points out that deterrent effect of punishment differs depending on whether the multiplier (p) is calculated (I) case by case, to reflect each defendants actual probability of punishment, or (II) on an average probability of punishment facing all defendants, and that the deterrent effect will also be different if the law uses (III) a constant fine, based on the average probability of punishment and the average harm8.In this paper, the effect on the concrete offender is analysed. Hence, the latter two regimes will not be analysed here.
The first regime should be analysed in two different subregimes: a) defendants actual probability of punishment for the offence he/she is being punished for, (p´); b) defendants probability of punishment for a similar offence if he/she commits the offence after (or while serving) the punishment for the primary offence, (p´´).
In the real world p´ equals to p´´ infrequently. It is quite likely that, p´´ > p´ because for law-enforcement agencies, it is, as a rule, easier to identify and apprehend offenders who already have been punished. But in concrete cases, p´´ may be lower than p´, because the offender will become more experienced and more able to avoid risk of apprehension and punishment. While analysing from the utilitarian point of view the optimal amount of punishment (f) to deter an individual offender from further similar criminal activities, we should use p´´, because if p´´ > p´, the offender would have been deterred already via use of f = 1/p´´*c and using f = 1/p´*c the amount of punishment f° = (1/p´ - 1/p´´)*c would be just wasted without any additional positive effect. And if p´´
Furthermore, p´´ is objective probability, but the offender acts according to his/her perception of the probability. Hence, in the formula (3) we should bear in mind the probability of punishment for a future similar crime as perceived by...
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