The law and economics literature on punishment reveals strong reasons of efficiency to adopt an extreme enforcement policy for any type of crime as a means to promoting deterrence. Under such an extreme policy, a crime’s severity of punishment would be set extremely high, but its probability of punishment would be set extremely low by minimizing the resources devoted to enforcing the law against the crime. This sort of policy applied to a moderately serious crime, such as a simple assault, would seem strongly unreasonable all things considered. However, it is not immediately obvious why such a policy would be so unreasonable on the assumption that the policy would be an efficient means of promoting deterrence. In this Essay, I argue that a novel theory of deserved punishment best explains why such an extreme enforcement policy would be so unreasonable when applied to a moderately serious crime. Although such an extreme policy might be efficient, someone who commits a moderately serious crime would not deserve the extremely severe punishment he would receive under the policy. In general, I conclude that my theory of punitive desert should play an important deontological role in constraining the means by which a state may enforce its laws against any type of crime.
Efficiency, Enforcement, and Punishment,
Notre Dame J.L. Ethics & Pub. Pol'y
Available at: https://scholarship.law.nd.edu/ndjlepp/vol31/iss2/3