Idea for Historical Law and Economics Thesis

23 August 2009 at 2:09 pm 4 comments

| 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.

Entry filed under: - Foss -, History of Economic and Management Thought, Law and Economics.

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4 Comments Add your own

  • 1. David Gordon  |  24 August 2009 at 10:08 pm

    One problem that developed with the English system was that juries often returned a not guilty verdict rather than subject a criminal who had committed a lesser crime to the death penalty.

  • 2. Nicolai Foss  |  25 August 2009 at 4:51 am

    David, Interesting and I am sure you are right. But does it change much? There is still a positive probability that the jury will in fact not return a not guilty verdict, where the probability is dependent on the severity of the crime.

  • 3. David Gordon  |  25 August 2009 at 9:57 am

    Yes, but the cost-benefit assessment for prospective criminals will differ from the situation in which failure to impose the death penalty only occurs because of a pardon. A pardon will usually mean that the criminal receives some other punishment, but with a not guilty verdict, the person faces no penalty.

  • 4. Steve Davies  |  8 September 2009 at 2:12 pm

    David is correct – the result of the system was indeed high levels ofacquittals (often blatantly in the face of the facts) plus ever more elaborate ways of avoiding the full rigour of the law. This idea would only work in the way suggested if there were no jury trials and the ‘judge’ was some kind of computer.

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