Miceli, Thomas J. --- "Deterrence and Incapacitation Models of Criminal Punishment: Can the Twain Meet?" [2012] ELECD 566; in Harel, Alon; Hylton, N. Keith (eds), "Research Handbook on the Economics of Criminal Law" (Edward Elgar Publishing, 2012)

Book Title: Research Handbook on the Economics of Criminal Law

Editor(s): Harel, Alon; Hylton, N. Keith

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443747

Section: Chapter 6

Section Title: Deterrence and Incapacitation Models of Criminal Punishment: Can the Twain Meet?

Author(s): Miceli, Thomas J.

Number of pages: 22

Extract:

6 Deterrence and incapacitation models of criminal
punishment: can the twain meet?
Thomas J. Miceli


1. INTRODUCTION

Economic models of law enforcement beginning with Becker (1968) have primarily
focused on the role of criminal punishment in deterring crime. This approach to the
determination of optimal criminal penalties relies on the rational offender assumption,
which maintains that potential offenders decide whether or not to commit an illegal act
by comparing the gain from commission to the expected punishment. Although some
may doubt the validity of this assumption, there is a growing body of empirical evidence
to support it (as reviewed in the next section).
One of the clearest policy implications emerging from this model is that fines should be
relied upon to the maximum extent possible before imprisonment is used. The obvious
reason is that, while fines and prison are equally capable of deterring rational offenders,
fines are costless to impose while prison is costly. The use of prison should therefore be
limited to those offenders whose lack of wealth makes the threat of a heavy fine inef-
fective as a deterrent (Polinsky and Shavell 1984). The extensive use of prison in actual
punishment schemes, however, appears to be inconsistent with this prescription.
One explanation for this practice is the desire for equal treatment of rich and poor
offenders, given that the economically efficient punishment scheme would essentially
allow rich offenders to "buy their way out of jail" (Lott 1987). Another explanation
is that prison serves an incapacitation function; that is, ...