The ABC’s of Criminal Behavior and Criminal Punishment

 

Tiffany Galeaz 

 

 

            Crime and punishment is a very important, yet complex topic that surrounds people everyday.  Crime takes place everyday, all over the world.  There are many items to include in the discussion of crime.  Criminals basically have four options: commit crime, do not commit crime, commit greater offense or commit lesser offense.  Criminals develop tastes and preferences for committing criminal acts.  Opportunity costs and indirect opportunity costs are examples of some of the consequences a criminal and/or victim may experience in response to criminal behavior.  In addition to crime and punishment surrounding people everyday, criminal law can be related to many basic economic theories.  Criminal law can be related to economic theories such as substitution and the price and income effects.  Another important part of this discussion includes deterrence.  Deterrence is a method used by imposing costs that outweigh the benefits of committing a crime.  There are two types of deterrence and they are general deterrence and specific deterrence.  Criminal law is a topic that entails two distinct views on punishment and they are the retributive theory and the utilitarian theory.  In addition to the two views on punishment, Dan M. Kahan from the Harvard Law Review suggests that there are two theories of punishment, and they are expressive condemnation (meaning) and deterrence (consequences) (4).  Generally, punishment includes three main types and they are capital punishment, incarceration and community service.  There are many disputes that take place, and the topic of incarceration is disputed among Democrats and Republicans.  In addition to the political disputes of Democrats and Republicans, David Jacobs and Jason T. Carmichael from Ohio State University conducted an analysis on theoretical explanations for imprisonment and discovered many interesting explanations for imprisonment.  When exploring a topic such as crime and punishment, there are many things that an individual can learn and understand.

            Crime is a term that people all around the world are familiar with.  Crime is an activity that can take place anywhere in the world at anytime.  For all we know, it could be taking place this very second.  According to Black’s Law Dictionary, “Crime is an act that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding” (399).  There are many aspects that a criminal considers when committing a crime.  A criminal will have tastes and preferences (intent) for committing the crime.  Punishment for committing a crime may reduce the taste for an activity.  This suggests that punishments will deter criminals from performing illegal acts.  When a crime is committed, there are many costs involved.  There are costs bared to the criminal, victim, victim’s family and society.  The table below is from the Encyclopedia of Cost and Crime and it summarizes the cost of crime and the party who directly bears it (339).

Source: Encyclopedia of Crime and Punishment

Criminal behavior also entails opportunity costs.  The most obvious cost of criminal behavior is the amount of time that is spent on the illegal activity that could otherwise be spent on lawful employment or legal activities (Katyal 6). Neal Kumar Katyal from the Michigan Law Review suggests that “As the returns from legal activity increase the opportunity cost of criminal activity increases as well, a fact that may partially explain why some criminal activities tend to be performed by poorer, unemployed individuals” (6). 

Not only does criminal behavior include opportunity costs, but it also includes indirect opportunity costs.  Indirect opportunity costs are focused on the economic and social nature of the individual (Katyal 6).  An example of an indirect cost would be an individual who undertakes criminal behavior and is no longer viewed as being suitable for lawful employment in the eyes of the legal system.  People who were, are or even suspected of performing an illegal activity have significantly decreased chances of being hired for employment (Katyal 6).  There are many things that can be included in the discussion of crime and criminal behavior and these discussions can be related to many things such as economic theories.

            Criminal law is an important topic that can be related to economic theories.  A simple theory such as a price increase in a product will cause people to consume less of it can be related to criminal behavior in a very similar way.  If the price of committing a crime increases, it will most likely cause people to decrease criminal behavior.  The graph drawn below is an illustration of how increasing the price of a crime will in turn decrease the amount of criminal behavior.

According to Neal Kumar Katyal from the Michigan Law Review, “The criminal law can be seen as setting prices for crimes, and these price effects may cause substitution (It should be noted that standard deterrence models implicitly assume substitution by holding as a central tenet that a penalty on activity X will lead people to substitute the legal behavior of refraining from X)” (2).  This suggests that an increase in the price of one crime may cause individuals to substitute, which will lead them to commit a different crime.  If a penalty is imposed on crime X, Y and Z could be the behavior that is substituted in place on crime X.  This price and substitution idea suggests that a penalty cannot simply be set based on the harm the crime can cause.  As an alternative, the penalty of committing an illegal activity should be set at a level that incorporates the individuals reaction to the penalty ( Katyal 2).  These substitution-like effects mentioned above can be summarized by stating that the expected punishment of a crime may cause individuals to shift to other crimes (Katyal 9).  An individual will commit an illegal activity as long as the benefit exceeds the expected punishment (Katyal 9).  This suggests that as long as the penalty is greater than the benefit, the individual will not commit an illegal act.  Neal Kumar Katyal from the Michigan Law Review concludes that:

Substitution yields three important normative conclusions about optimality.  First, no matter what utilitarian criteria a penalty scheme uses to determine what crimes merit what penalties, the punishment should fit the crime vis-à-vis other crimes to avoid perverse consequences.  Second, penalties cannot be set only in light of the harm an undesirable act causes, but also must take account of substitution effects.  Third, a different deterrence strategy should be used for those crimes where ease of substitution and elasticity of offenders are high. (14) 

Another economic theory to compare criminal law to is the income effect.  The income effect suggests that a high price for one crime may in turn decrease the commission of the other crimes (Katyal 18).  An example of the income effect would include consumption crimes, such as drug use.  An example would be if the price of drug A increases because greater penalties are imposed on the consumption of drug A, those who consume drug A will likely reduce their consumption of other drugs.  Drug A users’ real income drops when the price increases, so their purchasing power decreases.  Although the income effect can take place in this situation, the price increase in drug A may cause a price decrease in drug A substitutes; therefore, the substitution effect may take charge (Katyal 18).  Substitution and income effects are very important when analyzing criminal law and criminal behavior.

            Another important topic to consider when discussing crime is deterrence.  When considering crime, there needs to be a way to try and decrease and/or prevent future criminal behavior.  According to Black’s Law Dictionary, “Deterrence is the act or process of discouraging certain behavior, particularly by fear; especially as a goal of criminal law, the prevention of criminal behavior by fear of punishment” (481).  Deterrence is a theory in which the goal is to impose punishment for criminal acts in hopes of deterring the criminal or other individuals from other acts of criminal behavior. Deterrence is important to criminal law because it focuses on the consequences of criminal behavior.  Some might ask the question of how well deterrence works.  It is hard to obtain specific data on whether deterrence is effective in deterring individuals from committing crimes.  The following two tables, taken from the Source Book of Criminal Justice Statistics 2002, presents data on the attitudes toward the death penalty and attitudes toward the deterrent effect on the death penalty (143).

When comparing these two tables, it is important to note that the percentage of people who approve of the death penalty is higher than those who disapprove.  For example, seventy-four percent of males support capital punishment and sixty-two percent of women support capital punishment.  On the other hand, when looking at the table of attitudes toward the deterrent effect of the death penalty, the percentages are noticeably smaller.  Only Forty-nine percent of males think capital punishment deters others and thirty-five percent of women think capital punishment deters others.  Comparing these two tables suggests that more people support capital punishment, while less feel it deters individuals from committing murder.

 

Source: Sourcebook of Criminal Justice Statistics 2002

When discussing deterrence, there are two different types to be considered and they are general deterrence and special deterrence.  According to Black’s Law Dictionary, “General deterrence is a goal of criminal law generally, or of a specific conviction and sentence to discourage people from committing crimes” (481).  On the other hand, Black’s Law Dictionary defines special deterrence as “A goal of a specific conviction and sentence to dissuade the offender from committing crimes in the future” (481).  When discussing general deterrence, in simple economic terms, the analysis of marginal benefit to marginal cost is the key to this discussion.  The marginal benefit of a crime to the criminal is linked to the marginal cost of a crime to the criminal.  When the marginal benefit of committing the crime is greater than the marginal cost of committing the crime, the individual will most likely commit the crime.  On the other hand, when the marginal cost of committing the crime is greater than the marginal benefit of committing the crime, the individual will be discouraged from committing the crime. 

The graph below illustrates the economic concept of the marginal benefit and marginal cost of committing a crime.  At C1, the marginal benefit is greater than the marginal cost; therefore, the crime will most likely be committed.  At C2, the marginal benefit equals the marginal cost and this is the optimal level of criminal behavior.  At C3, the marginal cost is greater than the marginal benefit; therefore, the criminal will be deterred from committing this crime.  When looking at this graph from a criminal’s standpoint, points A and B indicate that the criminal should commit more crimes up to C2 because here marginal benefit equals marginal cost.  Points F and D indicate that the criminal will incur too much of a cost to commit this crime.

When discussing specific deterrence, it simply means that the punishment imposed on a criminal will deter that individual from committing the crime again.  In order to deter the person from committing the crime again, the expected future punishment must be greater than the benefit.  Specific deterrence is aimed towards preventing a single individual from committing the same crime twice, while general deterrence is aimed towards preventing the general population from committing crimes.

  Another important aspect of deterrence is marginal deterrence.  Problems may arise when analyzing marginal deterrence. The essential problem develops when trying to accurately place penalties on crimes of lesser and greater levels which in turn leads to crimes of greater levels (Katyal 3).  An example to better explain this would be a thief having his hand cut off for taking five dollars, and because the punishment is the same no matter what, he could have taken a greater value of money and received the same punishment.  If equal punishment is demonstrated for committing two crimes, which hurts society unequally, individuals will commit the greater crime if they believe it is more beneficial (Katyal 3).  According to the Michigan Law Review, “ The goal of a sanction is to induce a man to choose always the least mischievous of two offenses; therefore, where two offenses come in competition, the punishment for the greater offense must be sufficient to induce a man to prefer the less” (3).  This quote suggests that the main goal should be to deter an individual from committing a crime, but if criminal behavior should happen, the punishment of the greater offense must be significantly higher than the lesser offense in order for lesser offense to be committed.  A solution to marginal deterrence includes making sure expected penalties increase with expected gains; therefore, there will not be a marginal net gain from committing the larger offense (Katyal 3).  General, specific and marginal deterrence are very important aspects to consider when studying crime and punishment because the goal is to reduce crime.

            After introducing crime, comparing crime to economic theories and explaining deterrence, it is time to introduce punishment.  There are two distinct views when discussing punishment of criminal behavior.  The two different views are known as the retributive theory and utilitarian theory.  Both of these theories are used to explain why the punishment of criminals is justified.  According to Dr. Frank Spreng Professor of Economics at McKendree College, the utilitarian theory is described when a threat of punishment leads to positive benefits, while the retributive theory is described when crime leads to punishment.  According to Black’s Law Dictionary, “Retributivism is the legal theory by which criminal punishment is justified, as long as the offender is morally accountable, regardless of whether deterrence or other good consequences would result” (1343).  In contrast, Black’s Law Dictionary defines Utilitarian-deterrence theory as “The legal theory that a person should be punished only if it is for the good of society-that is, only if the punishment would further the prevention of future harmful conduct” (1581).  When discussing the retribution theory, it simply means that the criminal should be punished for committing a crime.  It is often said that under this theory, the criminal has a debt to pay to society and is often paid through punishment.  On the other hand, when discussing the utilitarian theory, it is often said that punishment often yields positive benefits for the community whether it be through deterrence, incarceration, incapacitation or community service.  The criminal is only punished if it is for the good of the society.  These two views of punishment are very important to understand when discussing criminal behavior and the punishment that follows.

            There are many different ways to evaluate the theories of punishment.  Dan Kahan from the Harvard Law Review suggests that the two theories of punishment are expressive condemnation and deterrence and he evaluates these theories as normative guides for action and as strategies for managing the tone of public discourse (4).  When looking at expressive condemnation as a normative theory, a person can only make sense of individual and group behavior when considering its social meaning (Kahan 4).  Under the expressive condemnation theory, criminal behavior and punishment have to be identified with their social meaning (Kahan 4).  According to Dan Kahan from the Harvard Law Review, “The meanings of wrongdoing and punishment, moreover, are related: the condemning retort of punishment signals society’s commitment to the values that the wrongdoer’s act denies” (4).  This is suggesting that there is meaning behind criminal behavior and punishment.  It also suggests that different acts of crime have different meanings such as rape and hate crimes.  When looking at expressive condemnation as a discourse strategy, it can be seen as a recipe for contention (Kahan 4).  This statement suggests that criminal law can be seen as a controversy.  Unlike the expressive theory which looks at meaning, deterrence as a normative theory focuses on the consequences that follow criminal behavior (Kahan 6).  The goal of deterrence is to make the marginal benefit equal the marginal cost.  This can be seen as a way of managing the number of crimes that are committed.  When looking at deterrence as a discourse strategy, it can be seen as a way for managing public discourse (Kahan 10).  The graph below illustrates the marginal benefit and marginal cost of committing a crime.  Point A is where the marginal benefit and the marginal cost of committing a crime are equal.  C1 is the optimum level of crime.  There is only so much crime the public will tolerate.  Points B and D represent actions the public can take in response to the number of crimes.  Point B shows that an increase in the marginal cost will decrease the number of crimes committed.  Point D shows that a decrease in the marginal benefit will decrease the number of crimes committed.  The theories of punishment, expressive condemnation and deterrence, play a major part in analyzing punishment along with the different types of punishment.

 

After discussing the theories and views of punishment, let’s discuss punishment and the different types of punishment that are used.  According to Black’s Law Dictionary, “Punishment is a sanction such as a fine, penalty, confinement, or loss of property, right or privilege assessed against a person who has violated” (1269).  There are three main types of punishments that can be imposed on individuals who execute criminal behavior and they are incarceration, community service and capital punishment.  These punishments are imposed depending on the severity of the criminal act and other factors.  According to Black’s Law Dictionary, “Incarceration is the act or process of confining someone; imprisonment” (775).  Incarceration may also be known as sending an individual to jail for executing criminal behavior.

Source: Encyclopedia of Crime and Punishment

The above table, taken from the Encyclopedia of Crime and Punishment, is a representation of the prison population from 1910 to 2001 (1223).  As you can see, the prison population has increased dramatically.  Another type of punishment is community service and according to Black’s Law Dictionary, “Community service is socially valuable work performed without pay; community service is often required as part of a criminal sentence, especially one that does not include incarceration” (297).  An example of community service would include picking up trash on the side of the road.  This type of punishment is often used on criminals who perform minor offenses.  The last type of punishment to be discussed is capital punishment.  According to Black’s Law Dictionary, “Capital punishment is the sentence of death for a serious crime and is often called the death penalty” (223).  All of these punishments are imposed to try and deter individuals from committing crimes for the first time or for repeating them. 

             A lot of things in the world today involve political disputes and criminal law is one of them.  The Democrats and Republicans have different views on punishment, specifically incarceration.  It is often stated that state officials will use topics such as criminal punishment to try and help them overcome electoral issues (Jacobs and Carmichael 3).  Republicans frequently state that deterrence is the best remedy for illegal acts (Jacobs and Carmichael 3).  The Republicans seem to take punishment more seriously than Democrats and support longer sentencing and higher imprisonment rates.  On the other hand, Democrats are known for being soft on crime (Jacobs and Carmichael 3).  Democrats often feel that street crime may be a result of unfortunate social circumstances which makes it harder for them to implement a policy that focuses on deterrence and retribution (Jacobs and Carmichael 3).  Basically Republicans and Democrats use the election time to sell themselves, make their beliefs known and promise to implement the policies once they obtain office.  Republicans are absolutely for retribution and will go the distance to make sure a criminal receives the acceptable punishment.  In contrast, Democrats are more laid back and Republicans use this in their political campaigns.  The disputes between Republicans and Democrats is one in which each side has their separate views and will stand by them.

            Along with the political disputes between Republicans and Democrats, David Jacobs and Jason T. Carmichael from Ohio State University, conducted a study and presented information on three theoretical explanations for imprisonment.  The graph below was taken from David Jacobs and Jason T. Carmichael and illustrates a negative relationship between the crime and imprisonment rates (2).  From approximately 1947 to 1970, the crime and imprisonment rates were almost at a constant.  In contrast, the total crime rates fell after 1990, but the proportion of prisoners grew dramatically (2).  In response to the graph, Jacobs and Carmichael conducted a study in search for other explanations of the imprisonment rates.

Source: Jason T. Carmichael and David Jacobs

The first explanation for imprisonment includes political entrepreneurs and punitive outcomes (Jacobs and Carmichael 3).  This includes the disputes between Republicans and Democrats and their conflicting views on punishment of criminal behavior.  Republicans are known to punish more and have higher imprisonment rates, while Democrats are known for being on the soft side when punishing criminals.  A second explanation for imprisonment includes social divisions with political implications: minority presence and economic inequality (Jacobs and Carmichael 4).  An example of a minority threat would include holding the crime rate constant and finding that the fear of crime is greater in cities with more African-Americans.  Also, cities with more minorities present have an increased number of police officers relative to their population (Jacobs and Carmichael 4).  Jacobs and Carmichael also suggest that where minority presence is the greatest, whites will demand severe penalties (4).  If this hypothesis is correct, we can expect that jurisdictions with Hispanics or blacks will have higher imprisonment rates.  In addition to minority threats, there are also economic threats.  An example of an economic threat includes a society that continues to become economically stratified will find it necessary for dominant groups to enforce through coercion to insure their supremacy (Jacobs and Carmichael 5).  Jacobs and Carmichael suggest that increased economic inequality should produce more substantial imprisonment rates (5).  A third explanation for imprisonment rates includes political ideology and religious fundamentalism (Jacobs and Carmichael 5).  This explanation includes a very important determinant of punishment, public opinion (Jacobs and Carmichael 5).  Political ideology has an emphasis on punishment which is consistent with conservative beliefs.  Conservatives feel that criminals are responsible for their actions and should be punished for disobeying the law.  Religious fundamentalism is another aspect of this explanation and it suggests that fundamentalist Protestant values are in favor of harsh penalties for crime.  In support of this outlook, the state is forced to make criminals pay for what they have done.  It is expected that incarceration rates will be higher where membership in fundamentalist Protestant churches is the largest (Jacobs and Carmichael 6).  The study that Jacobs and Carmichael performed produced many explanations about the theoretical explanations for imprisonment. 

The results of the study supported the expectations that incarceration rates are higher in conservative states (Jacobs and Carmichael 9).  On the other hand, Jacobs and Carmichael found that the relationship between racial threats and imprisonment is more inconsistent (9).  In the findings of the study, Jacobs and Carmichael stated that “With many explanations held constant, the results show that expansions in the strength of the Republican party and stronger conservative values produce subsequent increases in the prison population” (11).  This statement supports their previous assumptions.  Jacobs and Carmichael also added, “The stronger relationships between Republican strength and incarcerations in different periods provide added support for expectations based on the history of recent political events” (11).  The analysis also found evidence that effective demands for harsh punishments that result from a change in minority presence must be a result of political officials because they have the power to alter the criminal codes or sentence offenders.  This evidence concludes that when violent crime and other explanations have been held constant, states with the largest black population have higher imprisonment rates (Jacobs and Carmichael 11).  Another explanation that was proven to be accurate was fundamentalist churches and imprisonment rates.  This is true where membership in these churches is greatest and as a result they are more likely to imprison a larger percentage of their population (Jacobs and Carmichael 11).  In conclusion to their study, Jacobs and Carmichael stated “The findings suggest that research that makes a concerted effort to assess diverse political and economic explanation will provide a better understanding of how historical forces combine to shape the primary punishment used in advanced states” (13).

In conclusion, there are so many topics included in the discussion of criminal behavior and criminal punishment.  When analyzing the criminal’s side, there are things such as opportunity costs and indirect opportunity costs to include.  While a lot of people don’t fully understand this dynamic topic, crime and punishment can be related to basic economic theories such as substitution and price and income effects.  Deterrence is one of the main topics to include in the discussion of punishment.  Deterrence is used with the anticipation of deterring others from committing crimes.  Another important component in the discussion of punishment is the two theories of punishment which are the retributive theory and the utilitarian theory.  Along with the theories mentioned, capital punishment, incarceration and community service are the three main punishments used for disciplining criminal behavior.  The topic of punishment brings together and/or apart the political views of this discussion.  These two political parties, Republicans and Democrats have conflicting views and this raises different points about the topic of punishment.  The increasing incarceration rates were studied by Jacobs and Carmichael and they discovered three theoretical explanations for imprisonment.  There are many dimensions of criminal behavior and criminal punishment.  Criminal law is a rising topic that is discussed more frequently today.  There are not many solutions to stop criminal behavior once and for all, but deterrence is one of the solutions being implemented to decrease the amount of criminal behavior performed.

 

  

Works Cited

Black’s Law Dictionary. 8th edition. St. Paul, MN: West Publishing Group, 2004.

 

Carmichael, Jason T. and David Jacobs. “The Politics of Punishment across Time and Space: A Pooled Time-Series Analysis of Imprisonment Rates.” Social Forces 80.1 (2001): 61-89. Webfeat. McKendree College, Holman Lib. 10 Feb. 2006 <http://wf21a2.webfeat.org>.

 

Encyclopedia of Crime and Punishment. Ed.David Levison. 4 vols. Thousand Oaks, CA: Berkshire Publishing Group LLC, 2002.

 

Kahan, Dan M. “The Secret Ambition of Deterrence.” Harvard Law Review December 1999: 113. Lexis-Nexis. McKendree College, Holman Leb. 10 Feb. 2006 <http://web.lexis-nexis.com/universe>.

 

Katyal, Neal Kumar. “Deterrence’s Difficulty.” Michigan Law Review August 1997: 95. Lexis-Nexis. McKendree College, Holman Lib. 10 Feb. 2006 <http://web.lexis-nexis.com/universe>.

 

Spreng, Frank. Unpublished manuscript at McKendree College.

 

United States. Department of Justice, Bureau of Justice Statistics. Sourcebook of Criminal Justice Statistics Albany, NY: Suny, Albany, 2002.