The Social Desirability of Punishment Avoidance
Journal of Law, Economics and Organization, Forthcoming
36 Pages Posted: 28 Nov 2006 Last revised: 23 Feb 2009
Date Written: November 25, 2006
This paper argues that the law should sometimes encourage people to incur costs to avoid punishment, or, at least, should not discourage such efforts. Avoidance efforts, such as concealment of evidence, perjury, or obstruction of justice, are generally deemed undesirable because they waste real resources and also reduce expected punishment, and thereby deterrence. However, since avoidance efforts are also costly to offenders, they may substitute for socially costlier punishment such as imprisonment. If the resulting savings in punishment costs outweigh the social harm associated with reduced deterrence, or the additional enforcement costs required for maintaining the same level of deterrence, then avoidance is socially desirable. This paper also explores the argument that sanctions should generally not be maximal if avoidance is present. It shows that this result holds if, and only if, fines are the sole form of punishment. Otherwise, if optimal punishment requires the use of both fines and imprisonment, then fines should be maximal. Similarly, if punishment takes the form of imprisonment, then it should be set at the maximum level. The latter result is another manifestation of the desirability of encouraging avoidance.
Keywords: optimal law enforcement, crime, deterrence, avoidance
JEL Classification: D81, K42
Suggested Citation: Suggested Citation