Ruptures on the Right – Should we Moralize about Crime?

At Catallaxy Jason Soon argues that "Criminal conduct is just an externality like pollution. It should be properly ‘priced’" On this view the community should decide on the optimal level of criminal conduct and set the price accordingly. There is a huge gulf between right-wing utilitarians like Jason and social conservatives.

For utilitarians, all preferences are equal. If one man gets 100 units of satisfaction from forcing small boys to have anal sex while another gets the same satisfaction from getting a new car or trekking in the Himalayas it’s still 100 units of satisfaction. Every unit has the same value. The only important difference is that raping children imposes high costs on the victims and on balance the net effect on human welfare is probably negative.

Welfare economists take a similar approach. While they don’t think that individual people’s satisfaction levels can be measured and compared they do not discriminate between preferences. Every preference is equally entitled to satisfaction. The only problem is how to structure society so that individuals get as much of the things they want most as possible, and as little of the things they don’t want.

Moral ideas like deservingness or fairness have no role in this system. Jason says that in his opinion "retribution is pointless and primitive moralism that should play no part in criminal law."

Jason’s comments were sparked by John Quiggin’s support for income contingent fines for minor offenses like speeding. The idea is that a set rate find imposes more hardship on low income earners than it does on high income earners.

For utilitarians like Jason the major problem is the general deterrence effect of punishments. Where a behavior like drink driving or speeding imposes costs on others, these costs should be shifted to offenders and set at a level that reduces offending to the optimal level – a level where the satisfaction offenders get from the behavior outweighs the pain and suffering it imposes on others. In principle there should be an optimal level of offending for all crimes including rape (aka ‘theft of sexual services’).

The fact that rich people would be able to afford to commit more crimes and misdemeanors that poor people isn’t something that matters. Worrying about it would be "primitive moralism."

But "primitive moralism" is what social conservatism is all about. Conservatives are less interested in efficiency than they are in justice. They generally support social and retributive justice as ends in themselves. Social justice or fairness is about how rewards and punishments, and praise and blame are distributed. For example, a person who works hard for a living and contributes something worthwhile to society ought to be rewarded more than someone who earns their living doing something morally reprehensible. Conservatives do not approve of prostitutes and drug dealers being treated the same as hard working mothers or firefighters.

Retributive justice is about punishing and blaming people who have done something which is morally wrong. It isn’t necessary for this wrong to have actually hurt anyone. Many conservatives favor the death penalty because they think it is a fair punishment for unjustly taking another person’s life. While many also think the death penalty has a deterrent effect this is not the only motivation.

There is also a halfway position between Jason and the conservatives. Some social theorists argue that individuals are not just motivated by self interest. With the exception of psychopaths most people experience feelings of guilt and shame when they fail to live up to their own moral ideals. A society which draws on these motivations is able to produce higher levels of well being with lower levels of coercion than a society which relies on self interest alone. Pride can be a powerful motivator.

These theorists argue that social institutions can be regulated through informally enforced social norms. For example, journalists will protest against being forced to withdraw stories which damage the interests of potential advertisers or involve their employers in costly legal actions. In a well functioning society media proprietors who put profit above the professional norms of the industry will risk public disgrace.

The extent to which moral motivations can explain behavior is an empirical question. But it’s not an empirical question that economists are in a good position to answer.

Note: For more information on income contingent fines search Google for the phrases "day fines", "unit fines", and "structured fines".

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Mark Bahnisch
2022 years ago

“right-wing utilitarians like Jason”

It’ll be interesting to hear Jason clarify his ideological position. I recall reading that he’d joined the ALP when Latho became leader. He is certainly a utilitarian liberal, but I don’t know if he’d happily adopt the label “right-wing”.

liam hogan
2022 years ago

I’m yet to be convinced that when people behave criminally, speeding in a car for instance, they link what they’re doing conceptually to the possible legal consequences.
Good drivers obey speed limits because they feel that speeding is dangerous or socially wrong, not that it is too expensive. Drivers who speed don’t make a trade-off between their haste and the possible fine, they just don’t put a high value on the benefits of obeying the limit.
Shame and induced feelings of guilt have always been more effective methods of social control than fines and physical punishment, however calculated.

Andrew Norton
Andrew Norton
2022 years ago

Liam – I think this is true most of the time, with penalties existing for people who don’t follow social norms or to settle disputes between social norms (shall I drive faster or shall I be late?). Rising crime is a sign that social norms are breaking down, at least in sub-groups within the population.

C.L.
2022 years ago

I think Troppo has been punked. You should know that ‘Jason Soon’ is a University of Chicago spamopinionbot.

‘Jason’ presumably ‘believes’ that Anita Cobbie’s parents are ‘primitive moralists’ whose daughter merely had her ‘sexual services’ pinched.

Having experienced a less than ideal upbringing, her attackers should have received a pro rata sentence that returned them to society earlier than bourgeois sexual murderers. After all, why should the principle of means-testing not apply to the wider socio-economic and emotional context of criminal behaviour? It would be right-wing for Soon and Quiggan to argue against that notion.

As for Quiggan’s thesis, yes fines hit the poorer harder. Which is a worthwhile lesson for them to learn. Namely, life isn’t fair, they have to play harder and cleaner to get ahead. This has always been taken as read by the finest of working class and struggling people. (Who teach their children – the young Mark Latham being an example – to do it better and harder, to expect no special treatment and not to be “Liverpool slackers”). A mature acknowledgement of this fact of life is one of the things that helps them change their situations and become more prosperous. John’s solution would have the effect of forever shutting them up in a prison of low expectations.

If John really believed that capacity to pay was the measure of all things, he’d give that gorilla to tsunami relief simply because he can – not because he wants to boost his hit-metre.

Which leads to the scenario depicted in ‘The Boys’ – the film about the perpetrators of the Cobbie slaughter.

Economists are bean-counters who should be kept a long way from jurisprudence and actual governance. Their trade is not merely the ‘dismal science.’ It’s not a science at all – as, I think, Hayek taught.

C.L.
2022 years ago

I meant to paste in that third-last par as the final one, if that helps.

Mark Bahnisch
2022 years ago

‘the young Mark Latham being an example – to do it better and harder, to expect no special treatment and not to be “Liverpool slackers”‘

And look how well he turned out, C.L.!

Joel Parsons
2022 years ago

A libertarian would shudder at the thought of putting a price on crime. What is a crime? A crime is an invasion of someone’s freedom. Rape for instance is the theft of (usually) a woman’s sexual freedom.

When you put a price on crime, you put a price on freedom. If there was a price to pay in order to rape someone, then there would be well off women willing to pay a price not to be raped.

Do we really want to live in a society where we put a price on basic freedoms like the freedom to choose who you have sex with?

Money is a relative measure, but there are some things that are absolutes. To me, crimes like rape and murder will always be an absolute evil.

Jason Soon
Jason Soon
2022 years ago

“Economists are bean-counters who should be kept a long way from jurisprudence and actual governance. Their trade is not merely the ‘dismal science.’ It’s not a science at all – as, I think, Hayek taught.”

He said no such thing, CL, don’t pretend to have read people you haven’t. He said that economics was best regarded as the science of pattern prediction rather than forecasting. The study of incentives and how those incentives can influence social order is precisely within the province of economics, even as understood by Haye.

My comment about retribution being pointless was about the role of retribution theory as a justification for criminal law. I provided a link (which I Googled) which I thought explained what I meant by retribution theory
http://www.vusst.hr/ENCYCLOPAEDIA/punishment1.htm
The point here being that a social order that set its punishments solely on the ‘vibes’ however well intentioned would not necesarily best achieve its aims and that the study of incentives has an important part to play in formulation of criminal law (for instance, a law proposing capital punishment for sexual abusers of children might satisfy bloodlust but would probably marginally increase the tendency for pedophiles to kill their victims).

I never said anything about the instinct for revenge itself or anything about the parents of Anita Cobby. The instinct for revenge and even disproportionate punishment is an understandable one and probably served a useful survival function in the days when we were living in small tribes and had to fend for ourselves without public law and order. Basically the capacity for revenge is a signal to potential predators that ‘you don’t f*** with me and my family’. CL wishes to use Hayek as a justification for all tradition and instinct but Hayek himself identified various atavistic traits that evolved in the sorts of small communities that are not necessarily suitable for large, open societies under the rule of law. Though he did not single out the instinct for revenge as one of them (he was thinking more along the lines of modes of thinking that led to the social justice mentality of assuming a fixed pie to be apportioned, notions of society as one big family) economists’ preference for a deterrence as opposed to moralistic perspectives on criminal law is broadly consistent with this approach.

Evil Pundit
2022 years ago

Don’t fall for the feminist propaganda line that rape is some sort of ultimate crime.

Rape isn’t in the same class as murder. Murder is the absolute theft of a person’s right to exist; rape comes in many degrees ranging from mild to severe.

Jason Soon
Jason Soon
2022 years ago

Joel
I take the terminology is taking over the substance of this debate. When I say ‘price’ I also mean jail-time and other forms of punishment though I would argue a lot of non-violent crimes should be punished by fines. All an economic perspective is doing is being frank about the fact that the laws which maintain social order also have a signalling and pricing function – they work at least in part because of these functions. Whether you should to classify them as absolute or relative evils is a matter for moral philosophy.

Mark Bahnisch
2022 years ago

I taught criminology for four years. I don’t want to comment on Jason’s views because I’m not familiar with the literature that he refers to, but I will say this about retributivism. I think it’s absolutely wrong. I’m very old-fashioned in this regard but I think the truly liberal position is that the sentence ought to be proportional both to the crime (and there should be a large amount of discretion left to sentencing judges by the legislature) and also to the offender. I’m also opposed to victim statements and community conferencing and other forms of ‘restorative justice’. Criminal offences are not civil offences and should be a matter between the community as a whole (represented in this instance by the courts) and the offender. The politicisation of crime and justice policy is also abhorrent.

I don’t have time to outline the philosophical and sociological reasons which I could advance in support of this stance, but maybe I will at some point.

wbb
wbb
2022 years ago

“Good drivers obey speed limits because they feel that speeding is dangerous or socially wrong, not that it is too expensive.”

But what about bad drivers?

Nic White
2022 years ago

Jason I think its a bad and possibly dangerous idea to contemplate the use of fines for all non-violent crimes. It would become a situation where the rich would be able to afford ripping someone off or assorted other “white-collar” crimes because the price to be paid would be absorbable, while the poor would be forced into massive debt. No, you have to put a jail sentance on such things so the rich KNOW they can’t get away with it just because they are rich. No one should be immune to justice.

I support the idea of making the punishment fair to the offender. In some Scandinavian countries it works for traffic fines and so on, so why not here?

Mark Bahnisch
2022 years ago

Nic, in some cases, people already build fines into their financial calculations. The developers of a new apartment building on Ann St in Brisbane knocked down a heritage listed pub without a permit at midnight on a Sunday (the infamous Dean Brothers did the honours) without even telling the cops or having traffic formally stopped – to the great ire of the then Lord Mayor, Jim Soorley. They simply included the resultant $80 000 fine in their project budget.

Similarly the debate in Victoria over industrial manslaughter goes to the degree that OHS would be improved if managers actually faced gaol terms for negligence leading to death rather than a fine.

C.L.
2022 years ago

The Dean Bros should have been jailed.

Nic White
2022 years ago

“in some cases, people already build fines into their financial calculations”

I would nt be surprised, at all.