Mikos, Robert A. --- "Accuracy in Criminal Sanctions" [2012] ELECD 564; in Harel, Alon; Hylton, N. Keith (eds), "Research Handbook on the Economics of Criminal Law" (Edward Elgar Publishing, 2012)

Book Title: Research Handbook on the Economics of Criminal Law

Editor(s): Harel, Alon; Hylton, N. Keith

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443747

Section: Chapter 4

Section Title: Accuracy in Criminal Sanctions

Author(s): Mikos, Robert A.

Number of pages: 13

Extract:

4 Accuracy in criminal sanctions
Robert A. Mikos


1. INTRODUCTION

Law and economics scholarship suggests that criminal sanctions should equal the harm
caused by a crime, divided by the probability the criminal will be detected and punished
(Becker 1968; Shavell 2004). The formula for optimal sanctions is thus Si 5 Hi / p. Si is
the nominal sanction imposed and Hi is the harm caused in an individual case. When
the legal sanction is fixed by this formula, it is considered accurate1 in the sense that it
reflects the exact harm caused in a particular case.2 For example, the sanction for causing
$10,000 in harm would be exactly double (23) the sanction for causing $5000 in harm,
holding p constant. As scholars have shown, accurate sanctions give persons optimal
incentives to engage (or not) in criminal behavior; namely, they will do so only if the
private benefits of crime (b) exceed the harms.
In individual cases, however, criminal law regularly imposes sanctions that are smaller
or larger than the ratio Hi / p prescribes (Mikos 2006). For example, suppose that D1 and
D2 each commit a separate robbery involving the identical criminal act (actus reus); e.g.,
each pushes a victim and grabs a bag containing $100 cash. Suppose, however, that D1's
victim (A) dies of a heart attack triggered by the robbery, while D2's victim (B) suffers
only minor scrapes and bruises. Although D1 and D2 have caused dramatically different
harms, they would be punished identically in ...