Determinación del contenido proteínas

For offences that may occasionally be effi cient – assuming risk neutrality and unit demand elasticity – the law should impose an expected sanction that equals the social harm of the crime. In that way, a person will properly carry out the proscribed act only when the benefi ts to her of doing so exceed the social cost. As a result, for such crimes, we should expect to see punishments differ based not on the characteristics of the particular defendant, but on the extent to which the social injury arising from the act differs from one case to the next. In fashioning an appropriate penalty for one who double parks, for instance, the court should not ask what price would ensure that the offender never commits

PRICE DISCRIMINATION | 131

such an infraction again. Instead, the punishment – presumably a fi ne – should refl ect the harm caused by double parking in the relevant neighbourhood and at the relevant time.

The matter is altogether different for those crimes that ought always to be deterred. For these offences, the price should depend on the defendant’s characteristics, rather than on the harm occa- sioned by the proscribed act. If the optimal penalty depends on each defendant’s unique character- istics, the range of sentences imposed for such crimes should vary. In short, an effi cient criminal justice system would price discriminate, such that each imposed sanction marginally exceeds the offender’s reservation price. To a signifi cant degree, this is what we fi nd.

Price discrimination pervades criminal law. For example, the courts punish repeat offenders more harshly than fi rst- time defendants. The economic rationale is straightforward. If the price schedule previously put in place to minimise incidence of a categorically ineffi cient crime failed to deter a particular defendant, his offending shows that the price was too low. A person’s proclivity to reoffend at a price that deters others suggests that his private benefi t from engaging in the illegal behaviour is unusually high. If the law’s goal is to promote zero output in the market for that proscribed activity, deterring that particular defendant in the future necessitates a greater price.

Much the same reasoning applies to considering post- arrest rehabilitation in determining an appropriate sanction. Proof of an offender’s good- faith efforts to better himself, such as by enrolling in drug- treatment programmes, furthering his education, or by undertaking other activities that demonstrate a path of reform, generally leads to some sentence reduction. The economic reason is that such steps, if undertaken as part of a genuine, concerted effort toward self- improvement, indi- cate a diminished likelihood of committing the same crime again. The minimum price necessary to deter is, therefore, lower than it would be without such evidence. The same point holds true with respect to supportive factors that inform a judge’s sentencing discretion and thus enable her to impose a lower than average penalty on an offender whose offence was out of character.

Other examples of price discrimination abound. It makes economic sense to punish premedi- tated crimes more severely than those committed on an ad hoc basis, which is of course what the law does. A person who plans a crime in advance is more likely to evade detection. Thus, to maintain a particular expected cost, one must magnify the penalty for a deliberate act beyond that imposed for an otherwise identical deed committed on the spur of the moment. Even putting the probability- of-detection question aside, though, an individual who takes the time and effort to think through his planned course of action is more likely to consider the law’s imposed price and thus to reach a determination more consistent with rational- choice theory. If certain criminals are more likely to contemplate criminal penalties, their price elasticity of demand may also be higher, which would warrant a steeper punishment. One can “buy” a greater reduction in crime for a lower price by targeting criminals bearing elastic demand.

Related to this discussion, criminal law punishes people less who commit an offence pursuant to a sudden fi t of passion that overwhelms their reason, thus rendering them less deterrable at any given price. Although this phenomenon might appear to justify a greater, rather than a lighter, penalty, this is not necessarily true. If a sudden bout of rage would lead even a reasonable person to commit the crime, the price elasticity of demand for the offence at the relevant point in time is apt to be low. In such situations, imposing a greater price may entail great administrative cost to the state but would yield little deterrence. Thus, criminal law recognises a partial defence of provoca- tion if the incendiary act would have overwhelmed the self- control of even a normal person. The law properly declines to regard such an event as giving rise to a complete defence, however, because the price elasticity of demand in such conditions will rarely be zero, such that some deterrence is possible. The unsubtle point is that we want to encourage people to hold onto their reason even in infl ammatory situations, even if we simultaneously recognise that not all individuals will do so and calibrate the optimal sanction accordingly.

More generally, the law often allows a partial defence of diminished capacity, such as when alcohol or drugs were involved when the offence was committed. At common law, a defendant

could even evade criminal liability entirely for specifi c- intent crimes if his intoxication negated the required mental element for the crime. Recognising a diminished capacity defence, and imposing a lower price on people who did not have their usual control over their faculties, makes sense from the perspective of effi ciency.

E. Irrationality and the Realism of the Law and Economics