Retributivism in a World of Scarcity
THEORETICAL FOUNDATIONS OF LAW AND ECONOMICS, Mark D. White, ed., Cambridge: Cambridge University Press, 2009
30 Pages Posted: 4 Oct 2008
Date Written: April 29, 2008
The economic analysis of criminal law focuses exclusively on deterrence as the justification and motivation for resource expenditures on apprehending, prosecuting, and punishing offenders. Based on this concept, legal economists derive conditions for optimal deterrence based on efficient allocation of scarce resources to the police, courts, and prisons. This approach is criticized by retributivists, who argue that offenders must be caught and punished as matter of justice and right, regardless of any expected welfare effects stemming from deterrence. But a purely retributivist system of justice is idealistic, demanding that whatever means necessary be taken to bring offenders to justice. In a world of scarcity, however, trade-offs must be made, which the deterrence-oriented economic approach realizes, but the retributivist denies. This chapter aims to address the following question: How can a positive retributivist system of punishment, that demands that the guilty be punished, be implemented in a world of scarcity? Assuming that not all guilty persons can be apprehended, prosecuted, and punished, sacrifices will have to be made-but where? I preview this discussion with a brief summary of the economic treatments of retributivism up to now, and also the prospects for basing penalties on "hybrid" theories of punishment that mix deterrence and retributivism. Then I turn to retributivist penalties for offenses and how they would compare to deterrent ones. Finally, I confront the difficult idea of how retributivism would work in the real world, the world of scarcity, and what sacrifices would be most acceptable to achieve this.
Keywords: punishment, retributivism, scarcity, law and economics
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