56 Pages Posted: 12 May 2005
Crime has historically been a local phenomenon. Most murder victims know their killers; most victims of child abuse know their abusers; victims of theft often need not look beyond their own neighborhoods for the thieves. Crime is regulated locally. In the United States, it is the states, not the federal government, that prosecute the vast majority of criminal cases. Globalization is changing this in ways that have yet to be fully explored. Although crime as an event will always have a substantial local component because it is typically responded to by officials and victims in the place it occurs, it is becoming much more of a transnational phenomenon. It is increasingly common for activity that is regulated in one country because it is dangerous or unwanted to become more common in other countries where the activity is equally (or almost equally) unwanted but much less effectively regulated. What happens when activity that is unwanted in two places is more effectively regulated in one place than in the other? Does the unwanted activity migrate from the first state to the second? How much of it migrates, and what factors influence the amount of displacement? How should we conceive of regulation in these circumstances - as a local response to a local problem or as part of a broader effort to reduce the overall incidence of the unwanted activity? These questions are fundamental to determining what globalization will mean in the new century, but so far have not been fully explored. The existing scholarship on deterrence will be of limited use in a globalized context.
This article is the first attempt to fill the gap by developing a richer approach to deterrence for a globalized world. I draw insights from both law-and-economics and criminology literature to enrich our understanding of deterrence. To ground my theoretical discussion in a real-world problem, throughout the article I use sex tourism as an example of the kind of unwanted activity that now crosses borders and has complicated our understanding of deterrence. I focus on two issues central to deterrence in a globalized world that have not gotten sufficient scholarly attention: the phenomenon of displacement and the role of status. I add three important considerations. First, I argue that informal sanctions, as opposed to formal, legal sanctions, are increasingly important and must be part of any effective deterrence policy. Second, I argue that substitution - when activity migrates from one location to another because of changes in enforcement policy in the first place - is a complicated process that can be manipulated to enhance deterrence. Finally, I argue that when unwanted behavior involves people from different countries, we must consider the role of status in deterrence. Differences in status can distort the social processes of judgment and disapproval that allow communities to control unwanted behavior without recourse to law. These are vitally important issues. Because globalized crime is so widely dispersed, it will be almost impossible for the local communities affected to get together and develop a coordinated plan. If we are to prevent law enforcement successes in the West from turning into social disasters for those in the developing world, we must bring theory into step with the ways that globalization has changed the reality of crime.
Keywords: Criminal law, law and economics, international law
JEL Classification: K14, K33, K42
Suggested Citation: Suggested Citation
Keenan, Patrick, The New Deterrence: Crime and Policy in the Age of Globalization. Iowa Law Review, Vol. 91, p. 505, 2006. Available at SSRN: https://ssrn.com/abstract=719766