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International Reuzew of Law and Economics 1992 12 345 355 A Note on Marginal Deterrence STEVEN SHAVELL Harvard Law School Cambridge MA 02138 USA I Introduction and Summary The theory of deterrence has been concerned primarily with situations in which individuals consider whether to commit a single harmful act For instance a person may be deciding whether to discharge a pollutant into a lake In some contexts however a person may be contemplating which of several harmful acts to commitwhether to discharge a pollutant into a lake or instead to discharge it onto the ground where it might cause a different level of harm In such contexts the threat of sanctions plays a role in addition to the usual one of deterring individuals from committing harmful acts it influences which harmful acts undeterred individuals choose to commit Notably undeterred individuals will have a reason to commit less rather than more harmful acts if expected sanctions rise with harm This tendency is sometimes said to reflect marginal deterrence because an individual will be deterred from committing a more harmful act owing to the difference or margin between the expected sanction for it and for a less harmful act The term marginal deterrence seems to be due to Stigler 1970 but the notion has been well known from the time of some of the earliest writing on sanctions See Beccaria 1770 32 Montesquieu 1748 Book VI Ch 16 161 62 and Bentham 1789 171 Bentham for example states citing an essentially identical passage of Montesquieu that an object of punishment 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 A point of the present note however is that considerations of marginal deterrence are not a r on d e trefor sanctions to rise with harm Optimal sanctions rise with harm in models with marginal deterrence only if one makes a particular



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