Why Not Hang Them All: The Virtues of Inefficient Punishment

  • Friedman D
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Replacing a criminal punishment with another that both is more severe and has a lower ratio of punishment cost to amount of punishment, while reducing the probability of conviction to maintain the same level of deterrence, lowers both punishment cost and enforcement cost. Hence imprisonment is always dominated by execution and both are dominated by fines and other alternatives. Modern legal systems do not fit that pattern. One possible explanation is that the ability of enforcers to profit by convictions can produce costly rent seeking. Examples include product liability litigation, civil forfeiture, and fraudulent prosecution motivated by rewards in eighteenth-century England. The problem was avoided by the use of inefficient punishments in the legal system of saga period Iceland and the private norms of Shasta County, California. Execution, while not directly profitable for enforcers, facilitates rent seeking through threats leading to out-of-court settlements. [References: 19]

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  • David Friedman

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