ECONOMIC COSTS, MORAL COSTS, OR RETRIBUTIVE JUSTICE - THE RATIONALE OF CRIMINAL LAW (FROM COSTS OF CRIME, 1979, BY CHARLES M GRAY - SEE NCJ-64248)

• NCJ Number: 64260
• Author(s): M J RIZZO
• Date Published: 1979
• Length: 22 pages
• Corporate Author: Sage Publications, Inc
• Publication Format: Document
• Language: English
• Country: United States of America

Annotation

THE HYPOTHESIS THAT THE ESSENTIAL RATIONALE OF THE CRIMINAL LAW IS TO MINIMIZE THE SOCIAL COSTS OF CRIME IS EXAMINED CRITICALLY AND CONTRASTED WIIH THE CONCEPT OF BLAMEWORTHINESS.

Abstract

WHILE THE BLAMEWORTHINESS CONCEPT FOCUSES ON THE OFFENDER'S INTENT, THE COST MINIMIZATION HYPOTHESIS IS BASED ON THE CONCEPT OF DETERRENCE. THE HYPOTHESIS HAS TWO VARIANTS. BECKER'S AND POSNER'S ANALYSES ARE BASED ON MINIMIZATION OF USUAL COSTS INCLUDNG PHYSICAL INJURY, PROPERTY, DAMAGE, FEAR OF CRIME, AND CRIME PREVENTION. TO THESE CONVENTIONAL COSTS ADELSTEIN HAS ADDED THE CONCEPT OF MORAL COSTS, WHICH IS THE EXTERNALITY OF SOCIAL OUTRAGE INDUCED BY THE COMMISSION OF A CRIMINAL ACT. THE COST MINIMIZATION APPROACH CONFLICTS WITH ACTUAL LAW AND PUNISHMENT APPROACHES RELATED TO HOMICIDE, VICTIM CONSENT, THE CONCEPT OF NECESSITY, CRIMINAL NEGLIGENCE VERSUS TORT NEGLIGENCE, MISTAKES OF FACT, CERTAIN MISTAKES OF LAW, AND FACTUAL AND LEGAL IMPOSSIBILITY. DUE TO A FUNDAMENTAL METHODOLOGICAL ERROR, THE CONCEPT OF MORAL COSTS IS AN ELUSIVE AND VAGUE CONCEPT. IN ADELSTEIN'S FORMULATION, THE EXISTENCE OF MORAL COSTS CAN NEVER BE REFUTED BECAUSE THERE IS NO SATISFACTORY WAY IN WHICH MORAL COSTS CAN BE MEASURED. EPSTEIN'S THEORY PROVIDES A MORE SATISFACTORY EXPLANATION OF THE RATIONALE OF THE CRIMINAL LAW BY POINTING OUT THAT TORT LAW IS ESSENTIALLY CONCERNED WITH ALLOCATING A LOSS BETWEN TWO PARTIES, WHILE CRIMINAL LAW MEASURES THE ACCUSED'S BEHAVIOR AGAINST AN IDEAL STANDARD. THE MOST IMPORTANT ASPECT OF CRIMINAL LAW IS THE OFFENDER'S BLAMEWORTHINESS. THE CRIMINAL JUSTICE SYSTEM DECIDES WHICH CASES OF BLAMEWORTHINESS OUGHT TO BE PROSECUTED. THE MATTER OF ACTUAL HARM IS OF SUBSIDIARY IMPORTANCE IN CRIMINAL LAW. THUS, EPSTEIN'S HYPOTHESIS DIFFERS BOTH METHODOLOGICALLY AND SUBSTANTIVELY FROM THE COST MINIMIZATION APPROACH. DESPITE SIGNIFICANT SOCIAL COSTS OF CRIME, THE ESSENTIAL RATIONALE OF CRIMINAL LAW IS NOT THE MINIMIZATION OF A CRIME'S SOCIAL COST. THEORIES OF DETERRENCE MAY HAVE A ROLE IN CRIMINAL LAW, BUT NOT A FUNDAMENTAL ROLE. NOTES AND A REFERENCE LIST ARE INCLUDED. (CFW)