Idea for Historical Law and Economics Thesis
| Nicolai Foss |
Apropos the always-topical issue of the efficacy of the death penalty, I was recently told by Siegwart Lindenberg that one of Gordon Tullock’s characteristically quirky proposals for reform was to institute the death penalty as the sanction that any crime would meet in the criminal justice system. However, there was a twist, because although any criminal would receive a death penalty, not all criminals would actually be executed. Specifically, all criminals would be strapped to the chair, but there was only a probability that the button would be pressed, the probability depending on the severity of the crime. Because of risk aversion and a tendency to overestimate probabilities (and for the Draconian symbolic value), this scheme would put an effective end to much crime. (I haven’t been able to find a reference for this idea; perhaps it exists only in the oral tradition that surrounds the Tullock figure).
It is easy to dismiss the Tullock scheme as “cruel,” “inhuman,” “far out,” “not practicable,” etc. But perhaps it does have a historical precursor. At its height the criminal law of England (the “Bloody Code”) included more than 220 crimes that were punishable by death, including “being in the company of gypsies for more than one month” (here is the Wiki). Other countries have had similar broad approaches to which crimes were punishable by death, though perhaps few as Draconian as England’s. However, one has to bear in mind that there generally was a pardon system, and that it is quite likely that some of the weirder crimes leading to death sentences were more likely to be pardoned than the really serious ones (e.g., a pardon may have been more likely in the case of the “crime” of being in the company in gypsies than outright murder). Could it be that this pardon system functioned in such a way that the probabilities of actual execution directly reflected the real severity of the crime? It seems likely. The data are definitely there. It is just collecting them and doing the analysis.