Friday, August 31, 2012

On Finding the Proper Penal Sanctions

The verdict for drunk driver Afriani Susanti has been issued earlier this week: 15 years in prison for killing nine pedestrians in an infamous traffic accident. She was deemed guilty not of intentional murder, but of reckless and fatal driving.
 
I won't discuss the verdict from legal perspective here. 15 years in prison is the maximum sanction she can get if she is deemed guilty of intentional murder. What I am more curious about is the way to find the proper penal sanctions for various criminal activities.

In my January 2012 article about Afriani, I argued she must receive higher penalty — by categorizing her crime as an intentional murder — in order to reduce the incentives for other drivers to drive recklessly.

At that time however, I did not think deeply about the most efficient sanction for her crime. I only followed standard Law and Economics doctrine that a sanction of multiple crimes should always be clearly differentiated with a single crime, simply because we want to give less incentive for criminals to commit more crimes.

As an example, if the sanction for rape plus murder is equal to the sanction for rape only, a rapist will have more incentives to kill his victim because he will receive the same sanction. But the costs of him to hide his crime would be lower.

In reality, however, differentiating the sanctions for multiple crimes is difficult. And the case would be even harder for differentiating sanctions for various types of crimes, especially when we focus our sanctions in the form of prison and fines.

What would be the proper sanction for thievery, corruption, rape, murder, fraud, violence, genocide, etc? How would we properly differentiate the sanction of a killer of one person and a mass murderer?

Judges often become the victim of this absurdity. On the one hand, our legislators are not that creative in designing penal sanctions. On the other hand, the general public often have obscure ideas about justice and how justice should be served for these criminals. In the end, judges will be blamed for making the "wrong" decision.

What I would like to propose is to analyze each type of crime, to study the incentives of each criminal in conducting the relevant crime, and to design a sanction which will defeat the purpose of doing such crime and maximize the welfare of the society.

Further consideration should also be given to the cost of law enforcement, the compensation to be given to the victim as a result of the crime (if any), and the probability to prevent the same crime from occurring again (recidivism).

In Afriani case, she drove while she was being intoxicated. It is a very dangerous behavior, indeed. But would 15 years in prison serve her (and any other person committing the same act) right? How about we give her a sanction in the form of a lifetime ban from driving, a huge fine as a compensation for the victim, and countless hours of social service?
   
Then when she fails to obey the above sanctions and commits similar crime in the future, we send her to prison for a lifetime simply because she is too dangerous to exist in the society.

Why do I design the sanction in the above form? First, we know she is a very reckless driver. I doubt putting her in prison will fix that. And maybe 15 years after, she will still do the same thing. What is really necessary is to ban her from driving infinitely.

Second, putting her in prison is another costs to be paid by us taxpayers (not to mention that the costs of prison will include all reckless drivers involved in similar cases, albeit having different degree of crime). Why not focusing on giving compensation to the victim instead of wasting taxpayers' money?

Third, forcing her to do social service might be more useful than putting her in the prison. At least we can expect her to give more contribution to the society rather than paying her cost of life in jail.

And if all fails and she breaches her obligations above, we can justify the decision to put her behind the bars indefinitely, i.e. she is dangerous to the society.

Of course, if we know that Afriani intentionally kills those victims because she likes it, we can directly put her in prison or send her to the death penalty squad. In other words, incentives of the criminals matter.

As you can see, discussing the proper sanction for a single criminal act like reckless driving is already quite complicated, but this is necessary. If our government and legislators really care about legal enforcement, they should think carefully before they criminalize an act.

A single law can have a great impact to the overall society. So let us ensure such great impact does not affect us in a negative way.

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