Deterrence and Crime Results

This article offers a comprehensive study of the merits of the legal practice of punishing accomplished crimes more severely than attempted crimes all other things being equal (Differential Punishment) vis-à-vis the alternative of punishing them with equal sanctions (Equal Punishment). Unlike the overwhelming majority of the literature on the issue—which focuses on which practice better mirrors the offenders’ relative moral deserts—the article evaluates both practices from a consequentialist, deterrence-based point of view. In particular, it shows first that traditional economic theories of the criminal law should yield the conclusion that differential punishment is not superior to equal punishment. The few arguments that the economic literature offers against such conclusion, the article shows, are mistaken. Secondly, drawing on social and psychological findings, the article advances three new arguments showing that, under some likely social and psychological conditions, differential punishment is in fact a superior alternative to equal punishment