The Law and Economics of Fluctuating Criminal Tendencies and Incapacitation

Economic analyses of criminal law are frequently and heavily criticized for being unable to explain many criminal law rules and doctrines people find intuitively just. Existing economic models cannot properly explain, for instance, why criminal law distinguishes between (1) repeat offenders and first-time offenders, (2) murder and voluntary manslaughter, and (3) remorseful and non-remorseful offenders. This Article proposes a richer economic theory of crime that captures the rationales behind these practices and potentially behind many other important criminal law principles and doctrines. Unlike an overwhelming majority of previous economic analyses, my theory accounts not only for the deterrent effect of criminal punishment, but also for its incapacitative effect. Moreover, and perhaps more importantly, it acknowledges the fact that people have fluctuating, rather than constant, criminal tendencies. That is, it recognizes that some people who ordinarily would not consider committing a wrongful act can, in rare circumstances, lapse into committing a crime. Surprisingly, these two simple but critical concepts have never to my knowledge been jointly considered in an economic analysis of crime, even though their inclusion appears to be an obvious extension of the standard crime and deterrence model formalized almost half a century ago by Gary Becker. The threat of imprisonment deters crime, but even when deterrence fails and a crime is committed, imprisonment benefits society by preventing the criminal from committing further wrongs outside prison for the duration of the sentence. The more dangerous the criminal, the stronger the rationale for imprisonment because these incapacitative benefits exist only if the offender would commit more crimes if left at large. Since people have fluctuating criminal tendencies, however, the mere fact that a person committed a crime reveals imperfect information regarding his likelihood of recidivating. As such, the offender’s criminal history and the circumstances surrounding the crime reveal important pieces of information that can be used to update our beliefs concerning the offender’s expected dangerousness— that is, to distinguish those who have made an uncharacteristic mistake from the dangerous and reckless criminals. Capturing the interaction between the incapacitation function of imprisonment and potential offenders’ fluctuating criminal tendencies allows the model to supply specific, consequentialist justifications for repeat offender laws, voluntary manslaughter laws, and the treatment of remorse in criminal law. Going forward, this more nuanced approach will provide a clearer lens through which to view other pervasive elements of criminal law, such as the mens rea requirement, and to revisit the normative prescriptions of the previous generation of economic analyses