Inchoate Crimes Revisited: A Behavioral Economics Perspective
61 Pages Posted: 21 Jan 2014
Date Written: September 20, 2013
This article develops a behavioral theory of inchoate offenses - criminal attempt, conspiracy, and solicitation. The theory helps explain why inchoate crimes exist and why they are punished less severely than the underlying offense. The article identifies an important aspect of criminal misconduct (including inchoate crimes) that has been overlooked by commentators: in making a cost-benefit analysis, an offender will take into account not just the net benefits from the crime, but also the value of the “real option” embedded in the decision. The real option derives from three characteristics of criminal misconduct. First, offenders make irreversible (or costly to reverse) decisions when they plan a crime - their investment in time, effort, and out of pocket expenses - and when they execute it - once criminal liability is triggered, it cannot be undone. Second, offenders face uncertainty regarding the returns from a crime, the likelihood of detection, and magnitude of the sanctions. Third, in most instances, offenders have flexibility regarding the timing of a crime. All other things being equal, the greater the uncertainty regarding a crime, the greater the value of the option to delay. The article analyzes the nature of this real option, taking into account the complexity of a crime and the likelihood that the offender will commit the crime too soon or too late due to her uncertainty regarding her future willpower and the extent to which her preferences will change over time - time-inconsistent and projection-bias-induced misconduct, respectively. With this in mind, the article develops three arguments regarding inchoate crimes. First, inchoate crimes increase the overall complexity of planning, executing, and covering up a crime, and as a result they have a greater deterrence effect than what the standard account predicts. Second, inchoate crimes act as a commitment device to deter time-inconsistent misconduct. Third, they help prevent suboptimal, projection-bias-induced misconduct.
Keywords: attempt, conspiracy, solicitation, inchoate, criminal law, deterrence, culpability, real options, self-control, externalities, internalities, hyperbolic discounting, time-inconsistent, projection bias, bounded rationality, complexity, transparency, commitment, paternalism, preferences, procrastinati
JEL Classification: D83, D90, K14, K42
Suggested Citation: Suggested Citation