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Published online by Cambridge University Press: 01 January 2020
It is widely held that the proper role of criminal punishment is to ensure in a cost-efficient manner that criminal laws will be obeyed. As James Buchanan puts it,
the reason we have courts is not that we want people to be convicted of crimes but that we want people not to commit them. The whole procedure of the law is one, essentially, of threatening people with unpleasant consequences if they do things which are regarded as objectionable.
According to the deterrence theory of punishment, which I will here accept without argument in order to tease out some of its implications, legislators must be aware of opportunities to maximize the threat value of criminal prohibitions. By maximizing deterrence, we minimize the cost of crime. On the other hand, creating these threats, and carrying them out, is also costly. So we also wish to minimize the cost of avoiding crime. An efficient deterrent, therefore, will be one which minimizes the sum of the costs of crime and crime avoidance, where ‘cost’ is to be broadly construed.
1 Buchanan, James M. Freedom In Constitutional Contract (College Station: Texas A&M Press 1977) 8Google Scholar
2 The Model Penal Code (Sec.2.03 Comment at 134, Tent. Draft #4, 1955)
3 Sayre, Francis Bowes ‘Criminal Attempts,’ Harvard Law Review 41 (1928) 859CrossRefGoogle Scholar
4 Michael, and Wechsler, ‘A Rationale For the Law Of Homicide,’ Columbia Law Review 37 (1937) 1295CrossRefGoogle Scholar
5 For example, see Raiffa, Howard Decision Analysis: Introductory Lectures On Choice Under Uncertainty (New York: Random House Press 1968) 8–9Google Scholar.
6 Since (C) and (-C) are subjective probabilities, joint exhaustion assumes that the potential offender implicitly grasps that the only alternative to succeeding is not succeeding. If this reasonable assumption is false, we can simply forego the substitution.
7 I have E.E. Zajac to thank for this point.
8 Such factors as increasing reluctance of juries to convict might make it practically impossible to raise the expected punishment merely by increasing the sentence for success. For an interesting discussion of how the magnitude of sentences can influence the rates of conviction, see Schulhoffer, Stephen J. ‘Harm and Punishment: A Critique Of Emphasis On the Results Of Conduct In the Criminal Law,’ University of Pennsylvania Law Review 122 (1974) 1522–56.CrossRefGoogle Scholar
9 Criminal sanctions are, of course, only one source of deterrence. Total deterrence is also a function of the deterrent effects of police patrols, the prospect of civil liability, etc. The above argument is not affected by this, however, because the efficiency of P A as a deterrent can also be maximized independently of these factors.
10 Ryu, Paul K. ‘Contemporary Problems Of Criminal Attempts,’ New York University Law Review 32 (1957) 1174Google Scholar
11 Becker, Lawrence C. ‘Criminal Attempt and the Theory Of the Law Of Crimes,’ Philosophy and Public Affairs 3 (1974) 271Google Scholar
12 Lawrence C. Becker, 276
13 To be fair, I should stress that Becker was not restricting his discussion to fortuitously thwarted attempts, as I am. Other kinds of attempt (perhaps those whose failure is virtually preordained by the extent of the intended victim's security precautions) may exhibit systematic differences in the amount of socially harmful publicity they receive compared to successes. But if so, then there is all the more reason to focus upon fortuitously thwarted attempts. They alone allow us to distinguish the inherent differences between attempts and successes from the contingent differences. After all, it isn't the harmfulness of publicity that we are trying to study.
14 I am indebted to Holly Smith and to the editors of the Canadian Journal of Philosophy for many valuable criticisms of an earlier draft of this paper.