Econ 522 – Lecture 23 (Dec 4 2007)(Much of today’s lecture comes from chapter 15 of the Friedman book, which is now online as a digital reserve.)The next two lectures will be on criminal law.Like with the legal process for civil law, the economic goal of criminal law is to minimize the total social cost of crimes, plus the resources that are spent on enforcing thesystem (detecting and punishing offenses).Everything we’ve done so far has been about civil cases. In civil cases, a suit is brought by an individual who was harmed; in most cases, if the plaintiff prevails, the remedy is meant to compensate him for the harm that occurred.Criminal law differs from civil law in a number of ways:- The criminal intended to do wrong. (In many civil cases, the harm was accidental.)- The case is brought by the government, not an individual- The harm done was public as well as private.- The standard of proof is higher than in a civil suit- If found guilty, the defendant will be punishedThe first distinction is that a criminal conviction requires intent. The legal term is mens rea, “a guilty mind”. In tort law, we considered harms that happened accidentally. An injurer might cause an accident while taking precautions, and still been liable under a strict liability rule. An injurer might cause an accident while not taking sufficient precautions, and been liable under a negligence rule. An injurer might cause an accident while being reckless, and been liable for punitive damages on top of compensatory damages. But in any of these cases, the injurer did not intend for the harm to occur.(There are circumstances where the line of intent gets blurred. If someone is in a positionof responsibility for someone else’s safety and, through a pattern of negligence, causes that person’s death, they can be charged with “criminally negligent homicide” even though they did not intend for the person to die. The flip side of this: sometimes intent is enough, as when people are charged with attempted murder even though no actual harm occurred.)In civil law, a case is brought by the victim. In criminal law, a case is brought by the state. Recall that in tort cases involving accidental death, the victim could never receive damages; his family and friends could only sue for lost companionship or lost wages, not the lost life. Criminal cases do not require a living victim.This also allows prosecution of “victimless crimes” – that is, crimes which do not cause any clear harm, such as gambling, prostitution, and drug sales.The theory here is that all crimes harm the public – that is, the breakdown of law and order in society is a public bad. Thus, the public (represented by the state) brings criminal actions, not the victim.As we’ve mentioned earlier, in most civil cases, the standard of proof is a preponderance of the evidence. In criminal cases, the prosecution must prove its case beyond a reasonable doubt. We’ll come back to this.Finally, the distinction between civil remedies and “punishment.”In nuisance law, contract law, and tort law, damages are paid both to compensate the victim and to cause the injurer to internalize the cost of the harm: so that pollution, breach of contract, and accidents will only happen when they are efficient, that is, when they are less costly than preventing them. In criminal law, punishment is not meant to compensate the victim directly, and need not be limited to the magnitude of the harm done. Civil remedies generally transfer resourcesfrom one party to another, without destroying anything; criminal punishments, such as prison time and execution, often destroy resources, that is, they are designed to make the criminal worse off without necessarily making anyone else better off.Another way to put it is that civil penalties are designed to make injurers internalize the costs of their harms, so that these harms only occur when they are efficient; criminal punishments are designed to deter crimes, to discourage their commission in all situations.This begs an interesting question: are crimes ever efficient? Cooter and Ulen don’t seem to take much of a stand. (They ask the question, “which acts should be treated as crimes?” and give the rather unsatisfactory answer, “an act should be treated as a crime if doing so increases social welfare.”) Friedman clearly believes some are.Clearly, most crimes are inefficient. In order to steal my laptop out of my car, someone might have to break my window. The laptop has lots of personal stuff on it – papers I’m working on, pictures of my friends – it’s probably worth more to me than to him. Plus, he broke my window. So the cost to me is likely larger than the benefit to the thief. Similarly, stolen cars are worth much less than legally-owned cars. If someone steals my car, he’ll probably sell it for much less than it will cost me to replace it. Plus, he may have to reduce the value of the car to steal it – by breaking a window, jamming a screwdriver in the ignition, etc. Again, the crime is inefficient.And if a crime were efficient – say, someone stealing my car because they value it much more than me – there is often a legal alternative – offering to buy the car from me.However, Friedman gives a couple of examples of efficient crimes. One is a situation we saw earlier: a hiker is lost in the woods, on the brink of starvation, and stumbles on a cabin with nobody home. He breaks into the cabin and steals some food.(In this case, we have a legal doctrine to deal with the problem: private necessity. Rather than paying the penalty for trespass, breaking and entering, and theft, the “criminal” would likely just be liable for the damage done.)Friedman gives a creepier example: efficient murder. A very rich man decides he would derive a huge amount of pleasure from hunting and killing a human being. He finds ten people who all agree that he can pay them each $1,000,000, they’ll draw straws, and he can hunt and kill whoever draws the shortest straw. Since the transaction is voluntary, it seems like it must be efficient.In fact, there’s a recent case that sounds more like this than you’d expect. In 2001, a German man, Armin Meiwes, posted an ad online “looking for a well-built 18-to-30-year-old to be slaughtered and consumed.” Seriously. And someone answered. The two met, discussed it, and agreed that Meiwes would kill and eat the guy. (This would
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