The Rational Underenforcement of Vice Laws

57 Pages Posted: 17 Feb 2004

See all articles by Jonathan Barnett

Jonathan Barnett

University of Southern California Gould School of Law

Abstract

Governments tend to enforce vice laws - i.e., criminal laws targeting consensual but morally disreputable conduct-sporadically. Existing scholarship generally attributes this underenforcement strategy to a variety of case-specific factors, such as budgetary constraints, fluctuating public support, and interest-group pressures. I argue that governments generally underenforce vice laws because, excluding draconian enforcement strategies unlikely to pass a social cost-benefit test, this enforcement strategy is likely to minimize participation in vice offenses. Specifically, I argue that "strong" (but less than draconian) enforcement strategies - i.e., regularly applying criminal sanctions to vice offenses-are likely to generate more vice offenses than "weak" enforcement strategies - i.e., infrequently applying criminal sanctions combined with public education campaigns. This result, which runs counter to the standard economic prediction that increasing the cost of an activity reduces its incidence, is likely to occur because regularly attaching a formal "price" to a vice offense reduces marginal offenders' expected informal penalties for relaxing a principled commitment to the underlying moral norm. If strong enforcement cannot compensate for the lost deterrent effect of these extralegal penalties, then it may perversely increase the offense rate. At the same time, symbolically maintaining (but usually neglecting to enforce) criminal penalties for a vice activity, coupled with intensive public education, reinforces marginal offenders' intrinsic commitment to the relevant moral norm, thereby lowering the offense rate as desired. Given the foregoing, governments that wish to minimize participation in a particular vice activity (without violating the cost-benefit test) will rationally select weak enforcement over the alternative strategies of draconian enforcement, strong enforcement, and zero enforcement. This argument relies in part on established findings in the social psychological literature and more recent findings in the experimental economics literature. It also is weighed against, and finds support in, empirical evidence concerning historical and contemporary enforcement policies and results in several vice industries.

Keywords: Illegal behavior, crime, economic analysis of crime, criminal law

JEL Classification: K14, K42

Suggested Citation

Barnett, Jonathan, The Rational Underenforcement of Vice Laws. Available at SSRN: https://ssrn.com/abstract=502844

Jonathan Barnett (Contact Author)

University of Southern California Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

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