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In my April 12th, 2006, column for the Pittsburgh Tribune-Review, I did my best to explain why we punish murderers more harshly than we punish armed robbers and rapists.
You can read the column beneath the fold.
(For some reason, all but two of my Trib columns from late December 2005 through mid April 2006 are unavailable on-line. They appeared only in print. I thank the editors of the Trib for sending to me the texts of these columns.)
Joking aside, less severe punishments deter murders
I suffer from a self-inflicted curse. Having a J.D. in law and a Ph.D. in economics, I’m a member of two of America’s most joked-about professions. Cocktail-party acquaintances use the fact that I’m educated well beyond my abilities to regale me with endless jokes involving scurrilous lawyers becoming roadkill and pointy-headed economists living in ridiculous dream worlds.
I usually play along and laugh and pretend that I’d never before heard the one about the engineer, the lawyer and the economist stranded on a desert island. But, in fact, I’ve heard this joke, and all of the others, too many times to count.
Sometimes at cocktail parties, after enduring yet another economist or lawyer joke, I strike back by breaking into my own skit of “Have you heard the one about?” For example….
Have you heard the one about how economists who study law explain why rape isn’t punished as severely as murder?
Think about it; the answer’s not obvious. Everyone this side of sociopathy agrees that rape is a hideous crime. And most people agree that if we punished it even more severely than we do now, its incidence would fall.
So why don’t we punish rape even more severely — say, by executing convicted rapists?
When I ask my fellow partygoers this question, they typically have no good answers. After watching them struggle to figure out where I’m going with this question, I hit ‘em again: “Knowing that we can reduce the number of rapes by making it a capital crime, does the facthat we don’t punish rape this severely mean that our society doesn’t care as much as it should about women?
Does it mean that we secretly think that there’s some value to rape?”
Except for one woman a few years ago who mistook my motives for asking these questions and became giddy with delight that I might share her belief that current laws against rape reflect Western capitalist male hegemonic hatred of women, almost everyone agrees that laws dealing with rapists probably have a more rational explanation. But what is that explanation, exactly?
The answer is supplied by none other than the much-joked-about economists and lawyers who study such matters. The short, academic answer is “the need for marginal deterrence.” The plain English answer is “if rapists were punished as severely as murderers, the number of murders would rise.”
Put yourself in the place of a man who is a threat to rape women. If you learn that rapists will no longer merely be locked in prison for years but, instead, executed, you’re a bit less likely than before to rape. That’s good. But suppose that this higher “marginal” cost of committing a rape isn’t sufficient to prevent you from raping a woman. So you rape a woman. Once you commit the rape, you are subject to being executed if you’re caught and convicted.
What will you now lose by becoming also a murderer? Nothing. In fact, you have everything to gain by killing your rape victim. If you let her live, you run a real risk of being identified, captured and convicted — and then executed. But if you murder the woman after you rape her, you reduce your chances of being caught and convicted. (The chief eyewitness to your heinous crime, after all, will be in her grave.) So with nothing to lose and much to gain by killing your rape victim, you’re more likely to kill her than you would be if the penalty for rape were lower than is the penalty for murder.
Punishing rape less severely than murder ensures that rapists still have something more to lose if they kill their victims.
Of course, the same logic applies also to other crimes. We don’t execute armed robbers not because we don’t want to further reduce the incidence of armed robbery; it’s because we don’t want to strip armed robbers of incentives to let their victims live.
And likewise for the entire range of criminal sanctions. For all of its imperfections, our current criminal law generally — and sensibly — punishes crimes of lesser significance less severely than it punishes crimes of greater significance. Pickpockets impose real costs on society, but (because pickpockets are both unarmed and don’t invade the privacy of people’s homes) these costs aren’t as high as those costs imposed by robbers and burglars. So the law recognizes that it would be a fool’s gambit to attack pickpocketing by increasing the severity of its punishment so much that pickpockets shift into robbery and burglary.
It’s no joke. Law-and-economics scholars are full of important insights.