Thursday, May 29, 2008

Hate Crimes and Efficient Deterrence

After having lunch with Art Carden today, I decided that the following stuff was sufficiently sensible and interesting to justify a blog post.

The typical economist's argument in favor of punishment for a crime is deterrence. Crimes that cause more damage, other things equal, should be punished more severely. Of course, this is subject to complications due to marginal deterrence. It has been my impression, however, that most economists are uncomfortable with hate crime legislation. Hate crime legislation raises the punishment for offenders who commit crimes for bigoted reasons, or adds additional criminal charges (I am ignoring legislation that makes certain kinds of speech illegal, as I think that is different and much more likely to be a bad idea). Either way, it raises the expected punishment for such crimes. Does this make any sense? Surely what matters is the damage from the crime, rather than reason the criminal committed it, right?

But suppose that, other things equal, a criminal who commits a crime because he or she did not like the victim's race is more difficult to deter. That is, suppose such a criminal is more willing to put up with punishment (either because he or she believes strongly in his or her cause, or because he or she is blinded by rage, or whatever). Then raising the punishment for this sort of crime might make sense--it is harder to deter, so the punishment must be more severe, even if the damage is the same. Legislation might not be necessary to achieve this; judges could simply decide to issue harsher sentences for crimes apparently motivated by bigotry.

I thought this argument was somewhat novel. I see on Econlit that Dhammika Dharmapala has a few papers (coauthored with others) that seem to make similar arguments. I do see a problem with this form of legislation, however, in that it might be simple for criminals to avoid hate crime charges by hiding their racism. Evidence is required to show that a crime was racially motivated; it surely would not be very difficult to conceal this evidence (or never let it come into existence).

Art and I also discussed the difference between punishment for premeditated crimes and "crimes of passion". In general the law penalizes the former more severely than the latter. It seems to us, however, that this is backward. A murderer who carefully considers his crime is much more likely to take into account the possible punishment than someone who acts on the spur of the moment. To get the latter criminal to consider the punishment, the punishment had better be more severe if he acts impulsively. That is, we want to design the law so that it makes people ask "is this a good idea?" before acting. Having lighter punishments for people who act irrationally on the spur of the moment is exactly the opposite of what we want. If, as Bryan Caplan suggests, people have downward-sloping demand curves for irrationality, then if we want them to consume less irrationality, we want to raise the price.

There is some evidence that probability of punishment is more important for deterring young criminals, and severity of punishment is more important deterring adults (Lee and McCrary have a paper on the subject, I think). Perhaps there is a similar distinction for hate crimes; maybe greater probability of punishment would be more effective than more severe punishment. On the other hand, increasing the probability of punishment may be more costly than increasing the severity (depending on whether hiring more police is more costly than housing prisoners for a longer period of time).

5 comments:

Eric said...

If crimes of passions had harsher penalties, than no prosecutor would ever try to prove that a crime was pre-meditated, as that is harder to prove and requires more evidence. The defendant surely wouldn't want to argue the crime was pre-meditated as opposed to a crime of passion, because in order to do so one would have to also admit guilt. So if this was the case, then pre-meditated accusations would disappear, and you would essentially only have one tier of punishment -- the harshest one -- making such a distinction pointless to begin with. (I think!)

Mike Hammock said...

That makes sense, but it doesn't explain why we would punish pre-meditated crimes more harshly. It merely suggests that, for strategic reasons, we should punish them the same. That is, ideally we would punish crimes of passion more harshly in order to get passionate people to think more carefully before acting. Your argument suggests that, for practical reasons, we shouldn't make a distinction. I suppose a prosecutor might still argue that a crime was pre-meditated, if doing so increased the probability of conviction (that is, if the prosecutor is more interested in the probability of conviction than the severity of punishment).

Hmmm, this suggests an interesting trade-off: if the law is optimal (punishing crimes of passion more severely than premeditated crimes), then the prosecutor faces a trade-off: present evidence that a crime was premeditated, which makes guilt clearer and conviction more likely, or suggest that it was a crime of passion, increasing the severity of punishment. I'm not sure about the efficiency implications of this.

Also (going out on a limb here) it is possible (and routinely done) for the defense to argue simultaneously that 1) the defendant is innocent and 2) if he or she is not innocent, he acted in the heat of the moment. Perhaps clever defense attorneys would find a way to argue that their client is innocent, and if not, he or she planned it beforehand. Granted, that sounds like a difficult proposition. The existence of a plan obviously makes guilt more likely.

Eric said...

Well it could also be that we consider people who have such a wanton disregard for the law that they are willing to break it even after making a careful and conscious decision to do so as "more dangerous to society" than people who simply make a poor spontaneous decision, without having as much as an opportunity to fully weigh the costs and benefits of breaking the law as much as a person who commits pre-meditated crimes would.

Another reason why we might deem the criminal who commits pre-meditated crimes as more dangerous than the spontaneous criminal could be that the odds of the person who committed the spontaneous crime finding themselves in a situation that would cause them to make a poor decision and commit a crime-of-passion yet again is less than someone who's impetus for committing crimes does not rely on chance circumstances to arise, but rather a mere disregard for the law and a willingness to break it simply when it suits him.

Eric said...

Also, if one is making an irrational decision to begin with (committing a crime-of-passion), would incentives even come in to play to begin with?

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