Showing posts with label Criminal Law. Show all posts
Showing posts with label Criminal Law. Show all posts
  • 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.
  • Revisiting the Function of Penal Sanctions

    Here is my latest post (in Indonesian language) at ILUNI-FHUI site: Revisiting the Function of Penal Sanctions. The post discusses the use of Law and Economics tool in analyzing the role and use of penal sanctions and how we can shape our penal sanctions to meet their primary purposes.
  • Fairness Versus Efficiency in Law Enforcement

    A recent blog post has caught my attention. It describes another usual day in Jakarta, complete with major traffic jams and motorcycle drivers using the curb lane. The writer, a pedestrian, says he was in a fight with a motorcycle driver who wanted to pass him and kept asking him to step aside.

    Of course, the request was ridiculous. The lane has always been reserved for pedestrians, and they don’t have any legal obligation to let motorcycle drivers use it. Just when the fight was about to turn physical, a police officer came to break things up.

    At first the officer scolded the driver, saying he was violating the law and could be fined. The driver simply replied that he would accept the punishment as long as the officer also fined other motorcycle drivers using the curb lane, and there are many of them.

    Upon hearing that, the officer turned and instead scolded the pedestrian for his refusal to let the driver use the lane. It was a perverse result, showing that the officer was regrettably taken by the driver’s misleading argument.   

    We hear this kind of argument for fairness all the time. If you want to punish me, you should also punish the other people who are involved in the same crime. Or if you want to punish me, you should show that you’ve never done the same thing yourself. Is this argument valid when we’re talking about law enforcement?

    The answer is no. From a legal perspective, I’ve never seen any serious legal philosophers who support the idea that in order to make a valid legal enforcement, legal enforcers must be saints and ensure that all people who commit the same crime will be punished at the same time.    

    From an economics point of view, it would simply be inefficient to have that kind of rule. Imagine the costs if we had to ensure that all legal enforcers possessed the moral capacities of a prophet, being a perfect person who absolutely adheres to the highest standard of moral and religious principles. Where can we find such a great  person?

    Pakistan would be good case study. Pakistani legal officials, who believe they act in accordance with the correct version of Islamic law (unfortunately, it’s not correct), have established a strict rule for becoming a witness in homicide cases. People can only be witnesses if they have certain moral qualities, which include, among others, praying five times a day, never lying and maintaining good hygiene.

    The result? No one has ever been punished for murder under Pakistani Islamic law. Thankfully, that does not mean murderers can run away from their liabilities, because Pakistani legal officials still use the witness standards established under the English law, which is also applicable in Pakistan. But you see the point.

    When police officers are dealing with cases like the one I describe above, they should realize that they can in fact punish a motorcycle driver even if they don’t do the same to other violators. By punishing one driver, they can set an example that they’re going to enforce the law, even if it’s in a random or selective way.

    And such enforcement would be efficient. There are costs for law enforcement, and the optimum crime level might not actually be zero because at certain point, the cost for law enforcement might outweigh the benefits that we expect from reduced crime. This is called diminishing marginal returns.

    Of course, there are situations where we might be required to increase the law enforcement costs for specific crimes (say, corruption). But for traffic violations? Having random or selective enforcement in this case would be sufficient to give the correct signal to violators.

    Sometimes, uncertainty is effective to deter crimes. If you don’t enforce the law at all for traffic violators, they’ll think it’s fine to commit a violation as long as everyone else does, too. But if they know they might be punished, even if it’s just a possibility and not 100 percent guaranteed, they will think again.

    Such uncertain law enforcement will increase the costs of violation and make people more likely to comply with the rules. That’s why law enforcement is still necessary, even when the process is random or selective. So next time a police officer faces a similar case, he should just fine the guy and say to him: “Well, tough luck, sir!”
  • Impoverishing Corruptors, Why Not?

    The idea of impoverishing corruptors is not a new one. In fact our Anti-Corruption Law allows the state to confiscate the assets of convicted corruptors and requires them to prove that their assets are not the product of corruption in order to get them back. But this idea has been generally accepted with mixed feelings. 

    Some people believe that seizing the assets of corrupt individuals that were not actually acquired through corruption is a violation of human rights, especially when the state takes those assets for good. For them, the state should only take assets of corruption. I think this is a ridiculous idea, and I will tell you why. 

    Sanctions are sanctions. Why do we have sanctions? Because we want to impose costs on the criminals, we want to let them fully understand the notion that crime does not pay. Because if crime pays, people will have more incentive to commit crimes.

    To achieve that, we must ensure that whatever benefits criminals receive, the state will take it back, and impose additional costs on them, making clear that the costs of criminal activities will always outweigh the benefits.

    Furthermore, the lower the probability of getting caught, the higher the sanctions should be. Why? This is to compensate for the fact that some people might not get caught and therefore will suffer no costs for their crimes. Of course, we need to take into account this probability and let people know that if they get caught they will receive a higher punishment. 

    Having said that, I will argue that a prison sentence is not a cost-efficient type of sanction. The benefits of sending criminals to prison are highly questionable. The costs are very clear. First, taxpayer money is being used to pay for these criminal lives in the prisons. Second, there is no guarantee that prisons will change them into better people (at least in the current conditions in Indonesia). Third, there is always a possibility that richer inmates can bribe prison guards for their own benefit, simply because being a prison guard is not a well-paid job.

    People should also understand that sending people to prison is actually a violation of human rights; you restrict the freedom of the criminals. Now if you can agree with prison sanctions, how could you say that taking the assets of criminals is against human rights? That does not make any sense.

    I think this is the right time to think carefully about what type of sanctions we should develop in Indonesia and how we can utilize each type of sanction to deal with various types of crimes. Using prison and fines as the main sanctions is no longer enough. After all, all crimes have their own characteristics and underlying incentives.

    The incentives that lead people to corruption might be entirely different from the incentives that lead people to, say, murder or rape. Understanding the incentives of these different crimes will help us in designing effective and efficient sanctions.

    So let us return to the case of impoverishing corruptors. Money and other types of valuable assets are the bloodline of corruptions. Based on a simple economic analysis, we can say that people engage in corruption because they perceive that the benefits of doing so will be higher than the costs.

    Suppose the value of your corruption assets is $20 million. Assuming that the costs of the sanctions multiplied by the probability of being caught is still lower than $20 million, economic analysis dictates that rational bad men will engage in corruption. This means that even getting back the whole $20 million would not be enough!

    In addition, the people who argue against impoverishing corruptors say that the state should just recover the stolen assets. Again, this is clearly not enough. For each batch of stolen assets there are various opportunity costs for the government where the government could have invested those assets to generate more revenue. There are also costs for recovering those stolen assets. The law  enforcement system is not free.

    Thus, it makes sense that the state should not only recover the stolen assets, but also the expected profits and interest that it would have received if those assets could have been used by the government in the first place, plus the whole cost of the criminal proceedings. Meaning that if a corruptor takes $20 million, he must be required to repay a lot more than that.

    I do not see any good reason why we should not impoverish corruptors. Sending them to prison without taking their assets would only add a burden to the state budget, and is not efficient or maximizing welfare. It’s time to think like economists when dealing with pricey legal issues.
  • Why I am not a Fan of Customary Law

    A couple of days ago, I came upon very troubling news about the current draft of our new criminal code that is supposed to replace the one made during the Dutch colonial era. Apparently, the drafters of the new code inserted a provision saying something like this: the Criminal Code will not limit the possibility of applying the laws that stipulate that someone must be penalized even though the penal actions are not regulated in Indonesian regulations.

    Even worse, it seems that the senior law professors involved in the process are not strongly opposed to this provision, with some evening showing their support, saying that customary law should be respected in Indonesia. This is preposterous. Under classical legal doctrine, a person can only be penalized if his or her action violates the written provisions of a validly promulgated law, the so called legality principle.

    I assume that most of the time, defenders of the use of customary law in the Indonesian legal system believe that customary law represents the indigenous wisdom of the relevant society. The fact that the customary law has existed for a long time means that the practice is good for everyone. This is completely misleading.

    There are many explanations given for why certain customs prevail for such a long time. First, the customs are efficient for everyone within the society. Second, the customs are efficient only for the majority of the society. The second type of customs will be our main focus because it is possible that such customs are effective for the majority without putting any burden on the minority, but it is also possible that the customs only benefit the majority at the expense of the minority.

    We have a lot of examples for these kinds of customs, especially customs that support discrimination based on race, gender, and religion. It can also be in the form of non-welfare maximizing customs where people cannot avoid such customs because costs of avoidance would be too expensive (imagine the custom of Indonesian people to hold a marriage party). In other words, the persistent existence of such custom does not necessarily indicate that the custom is good for the welfare of the society.

    Having said that, putting a provision that people can be penalized for actions that are not legislated in state laws would be a ridiculous idea. First, the standards are not clear (and the diversity of tribes in Indonesia will complicate the standards even more). Second, there is no guarantee that policing transgressions of customary law is justified other than to satisfy the interests of certain groups in the society.

    Why do we have criminal law? From a Law and Economics perspective, criminal law exists to deter actions that will cost society. Certain acts must be prevented and we should give incentives to people to avoid such actions because we believe that the existence of those actions will result in a net public loss.

    Furthermore, criminal law will only be effective if there is a strong enforcement basis. That would be another cost for society. After all, legal enforcement is not free of charge. That is why some legal scholars argue that the optimum rate of crime might not be zero, because the costs for achieving such a rate might actually outweigh the benefits.

    Thus, in order to reach a balance, we should be careful in formulating criminal law provisions. We should only criminalize actions that are clearly harmful to society and where the costs of the enforcement would justify having such criminal provisions. This means that the legal provisions must be clear, people should know what the prohibited actions are and why the actions should be prohibited.

    You can’t achieve this goal if you can criminalize other people by using provisions that might be unknown to the public or don’t have legitimate reasons for existing in the first place. If these lawmakers really understand the efficiency principle, their way of thinking should be reversed. Customary law should only be used to exempt a person from being penalized under the provisions of the criminal code provided if the end results will produce net benefits to society.

    By this I mean that if the customary law can solve the criminal issues using cheaper measures without having to use the standard state legal enforcement process (which is costly), we should go with the customary law (a good example would be the concept of restorative justice).

    I can only hope that the final version of our new criminal code will no longer include the above provision.
  • Corruption Money and Lawyers Fee

    Recently, I saw an interesting question on Twitter: Are lawyers allowed to receive payments from corruption money? My answer is yes, and there is a good reason for that.

    Based on my personal observation, it seems that there is a belief by the public that lawyers should not represent suspects of corruption cases, and should therefore not receive their money, since it might be tainted with the corruption itself.

    I find this argument to be ridiculous. First of all, under the prevailing laws, if you conduct a transaction with a third party, provided that you act in good faith, there is no need for you to know where the money is coming from.

    From an economics point of view, it is an efficient rule. Imagine the costs to society if we need to know the source of income of all parties that transact with us. This kind of know-your-customer rule is generally applicable only for banking and securities transactions, where the potential of money laundering is high; but this rule should not be applied to the general public transactions.

    Second, every criminal suspect has the right to be represented by a lawyer, whatever his criminal activities are, be it murder, rape, thievery, or corruption. Hating corruptors does not mean that lawyers cannot represent them or receive their money for payment of their service.

    In one of my previous articles, I argued that lawyers have an absolute duty of confidentiality in assisting their clients. This means that the lawyer is prohibited from ever betraying his client, or jeopardizing the interest of his clients in any way. It is the only way to ensure that all criminal suspects will have the same position in front of the law to prevent abuse of power by legal enforcers.

    By imposing such duty, even when the lawyer knows that his client is guilty, it does not mean that he can suddenly report his client to the relevant authorities. Once he represents the client, the duty must be applied at all times. It also means that when the lawyer receives the money and knows it’s coming from corruption, the lawyer should not be required to report the source of such payment to any authority, simply because that will defeat the entire purpose of client-attorney confidentiality.

    At this point, readers might voice their protest over the above rule. How could we let corruption suspects use their money lavishly for paying their lawyers, which can also be used as a cheap tactic for money laundering. Don’t give up hope yet. There are many things that we can do to prevent such a thing from happening.

    While the lawyers are not required to report the source of their payments, the authorities can always require them to report the amount of their fee. Doing so will allow the authorities to determine whether the payment is reasonable or whether it is being used for something suspicious. If it is used for a money laundering purposes, we can expect that the amount will be excessive. Furthermore, in the end, such money will still need to be returned to the corruption suspects. Of course, the authorities may interfere during the process of returning the money.

    It is true that the lawyers are entitled to receive payment for their services, but it does not mean that they may assist their clients in another type of crime. At that point, we can impose liabilities upon the lawyers for abetting money laundering. This will provide less incentives for them to assist their clients in doing so, and the clients will also have less incentives to use the lawyers service for money laundering purposes.

    As a result, we can expect that the payment made by the corruption suspects will only represent the lawyers fee. After all, if the lawyers cannot find a way to transfer the money back, the corruption suspects will never transfer an excessive amount of money to their lawyers in the first place.

    I think this is a win-win solution for all parties to ensure that lawyers can represent their clients properly and protect the integrity of the criminal justice system, while also preventing abuse of the lawyer’s position to help the corruption suspects in securing their corruption assets.

    In law and economics terms, we call this as a pareto efficient rule where we can maximize the welfare of the society without having to impose costs to other parties. And in my opinion, we should always strive for achieving that efficiency if we really care about society.
  • The Fatal Accident and the Case for Intentional Murder

    Just recently, an Indonesian woman drove her car against several pedestrians, killing at least 8 of them and injure 4 people (or maybe more). Several news reports said that the woman had consumed narcotic drugs prior to the accident, adding the number of crimes that she might end up with in the court. Obviously, this type of case will fall under the definition of either unintentional murder or reckless acts which cause death. But what I would like to explore more is the possibility of imposing intentional murder provision against the defendant.

    Once there was a case in Indonesia where a bus driver drove his bus and dozens of his passengers to oblivion by throwing the bus directly into a river. The driver was driving so recklessly and in such a high speed that he lose control of the bus and end up flying from the bridge. He survived, but unfortunately most of his passengers were not as lucky as him. The state attorney who filed the suit against him felt so disgusted that he claimed that the driver has conducted an intentional murder. He absolutely knew that his action was very dangerous toward himself and his passengers, yet he failed to drive properly. Even worse, some witnesses testified that they have warned the driver how dangerous is his driving and he simply ignored the warning. The end result was a disaster.

    I forgot how the case ended up, if I am not mistaken, the state attorney won the case. It is true that the Indonesian legal system does not recognize precedent system where a final and binding court decision can also bind future decisions. Still, it is a good case and can be used to inspire other cases, possibly including this case. But before we move to this case, I would like to discuss first whether it is correct to consider this kind of "recklessness" as an intentional action.

    Standard law and economics analysis says that a person should be liable for damages to his victim due to an unlawful act in case the costs of him for avoiding such act is lower than the costs imposed to his victim multiplied with the probability of such action to occur. The mathematical formula would be as follow: B < PL where B is the cost for avoidance, P is the probability of the act's occurrence, and L is the losses incurred by the victim. The higher the intention of the defendant, the higher the probability would be. In certain cases, the value of P could be maximized into 1 or 100% chance that the action will occur and the victim will absolutely incur losses. Take as an example a person who intentionally hit other person without any reason.

    The bigger the P is and to the extent such amount of P is increased due to the contributory action of the defendant, the higher the liability of the defendant should be. Why? Again, standard law and economics analysis will say that when the increase in P is caused by the defendant action, the sanctions to be imposed to him must also be increased in order to increase his costs of doing unlawful action. The problem with this analysis is that it ignores the subjective intention of the defendant, something that is still perceived as an absolute thing in classic criminal law, i.e. the Mens Rea element.

    There is a good reason that intention should not be seen merely from the subjective point of view. When you drive in a high speed under the influence of drugs and on a busy road in a city, you ought to, no you must absolutely know that your action is really, really dangerous. To say that it is a reckless driving merely on the basis that you don't intent to kill anyone seems absurd and does not make any sense. That is why I would prefer the objective standard of reasoning used by law and economics to establish an intention to do criminal activity. This is a case where the amount of P would most likely reach 1 (or 100%), it would be miracle if a driver in such state would not produce any accident whatsoever.

    At this stage, we do not know the entire facts, so I can't judge the end result. But if it is true that the driver drove within the influence of drugs and in such a reckless way, it is suffice to say that she should be deemed of doing an intentional murder. Note this, the punishment of intentional murder is 15 years while the punishment for reckless act which causes death is only 5 years, so there is a huge discrepancy which is determined by how we perceive recklessness and intent to do crime. Furthermore, I would say that further investigation should also be done against the passengers of the car. Just to ensure whether they know that the driver did have problems and still let her to drive or whether they have acted properly and reminded the driver. This kind of act should not be left unpunished and proper sanctions should be given to ensure that we are giving the correct incentives to the society.
  • On Why Lawyers Should Never be Required to Report Their Own Clients

    It's been a month since the last time I wrote in this blog. I guess vacation time is really over. Anyway, yesterday I read a interesting news from Kompas. Apparently, one of the former chiefs of the Commission of Corruption Eradication (KPK) had an idea that lawyers of corruption case suspects must report the payment for their service that they received from their client to the anti money laundering authorities. The reason for this policy? Because they believe that there is a good indication that the money is coming from corruption and therefore the lawyers must report it.

    Although I am always sympathetic with anti corruption movement and would love to hear new innovations, I can't believe that a former lawyer could actually voice this perverse idea. Sure, having this kind of mandatory reporting could be a good screening mechanism. Those who report would probably have no case at all, while for those who refuse to report, we can expect that there is something fishy is going around. Would not that produce an efficient way of legal enforcement?

    The answer is no. There is a good reason why lawyers are sworn not to provide any information to third parties that might jeopardize the interest of their clients. A good analogy to this issue is the market for health insurance. One of the main problems of health insurance industry is the fact that there is a huge information asymmetry between the insurance companies and the policy holders. Insurance companies get money from this business by pooling the money from their clients and hoping that the amount of the pooled money will exceed the total money that they will pay for the claimants. Of course, the pooled money are just a fraction of the total expected health costs of the policy holders depending on the probability of paying the insurance claims in the future.

    As you can see, there is a huge incentive for people with high health risks to buy insurance policy while people who know that they are quite healthy will most likely refuse to purchase an insurance policy (unless they are risk averse or the price is acceptable to them). In case the numbers of high risk people beat the numbers of low risk people significantly, a market of lemon will soon be created where insurance companies will be flooded with high risk policy holders and the insurance premium will be increased to cover the higher probability of insurance claims payment. In one instance, the premium can reach a level where those who actually really need the insurance cannot afford the price and those who are previously interested to buy the insurance policy refuse to do so. A solution for this problem is to require all people to buy mandatory health insurance policy in order to reduce the premium amount (see as an example, automatic insurance for employees).

    Similar thing would also happen once lawyers have the obligation to report anything fishy related to their clients (I mean, if you do this for corruption cases, we should also do the same for all criminal cases, from thievery to murder and rape crimes, why bother making the differentiation?). Being a lawyer myself, I could assure you that lawyers are the master of covering their own liabilities. Rather than being a victim, the lawyers will eventually report the client to the related authorities. There would be no incentives for lawyers to protect the interest of their client. Once they know that their clients are most probably guilty, they will stop representing their client since they are being required to report things that may jeopardize their clients' interest. Why bother having state attorneys if that's the practice?

    And clients are not stupid, some will refuse to use lawyers services because of fear of being betrayed, in which we can assume that they are indeed guilty. But that is a very dangerous assumption. One of the basic principles in criminal law is that we cannot punish someone based only on assumptions. That's why we have the "beyond the reasonable doubt" rule. Punishing the wrong people or giving a punishment which is not in accordance with the severity of the criminal activities is not efficient since it lowers the costs of doing criminal activities (the lower the probability of getting punished, the lower the costs of crime). Thus, we invest in creating a rule that can produce the most correct result (or at least we hope to).

    Creating a system where lawyers can turn out to be their clients own enemy once they deem that the clients are most likely guilty is not helpful at all. Those who are really in need of legal assistance will be excluded from the legal service. We need to understand that law is not an easy subject for most of the common people and they might not always understand whether they have done something wrong or not. That's why we create a system where lawyers act as their assistant in understanding the legal issues that they will face in the court and that the lawyers will protect the confidentiality of any information that they receive from the client. This is the essence of presumption of innocence. To ensure that the system will work, there must be a relationship of trust between the lawyers and the clients.

    This bring us to the second reason. If people don't use the service of lawyers if they don't believe their own lawyers, the number of clients will decrease. Depending on the situation, there can be two possibilities. One, the end of lawyers business. Second, an increase in the fee of lawyers and a new business focusing on the clients who solely conduct validly legal activities. I am certain that this is not the intention of having lawyers in our legal system. It might be hard to accept, but the only way for the whole system to work is to let lawyers represent all the people regardless of the fact whether they are really guilty or not.   

    In any way, I am happy that the idea has been rejected by the legislators. At least now I can find something that I could agree with them after all these years.
  • Is The Right to Die Justifiable?

    The latest case of an Indonesian law student who burned himself to death in front of the Presidential Palace is indeed an interesting one. At first, I want to disregard the student's motive but then I realize that the question of motive is the essential part in the analysis which will affect our final thoughts in perceiving his decision. So, let's start with the question: do people have the right to die?

    It's a tricky question which triggers a lot of debates involving significant different views. The comments on the above case can be a good example. Some people consider the action as a foolish one without any benefit to the society, that people will soon forget it and it is harmful to the student's parents and close family members. Other people consider it as a heroic action, that it demonstrated a resistance to a corrupt government, and that the student should be honored because not a lot of people will have the bravery to burn themselves as a form of protest.

    What interest me the most is the fact that the discrepancies in views were ultimately caused by the motive of the student in burning himself. Why the motive should be considered at all? Are we saying that the right to die should be honored in certain conditions in accordance with the motive? We condemn ordinary suicide (in case the student burned himself out of desperation with his own life) but we approve the action if it is done out of desperation of other people's life? How come? More importantly, why should we bother with the right to die? The dead guy would have no interest with what we will say on his right to die simply because he is already dead.

    The main problem here is because if we agree that people have the right to die, it indicates that people should also have the basic right to freely do whatever they want with their own body (well at least some people believe that people should be free to do so). I mean, if we agree that people has the right to kill themselves (which is the ultimate action that a man can do with his body), they should also have the freedom to, say, hurt themselves or conduct activities that may be harmful to their body as long as they give their full consent for doing such action (meaning no fraud or coercion or misappropriation of condition by third parties).

    Applied consistently, there should be no paternalistic regulation on how people should behave, and there should be no "protective" regulations intended to protect the public from doing dangerous activities as long as they agree to do such action. In other words, those "protective" regulations should be optional instead of mandatory. Yet we know that the this is not the case in real life. Safety regulations in factories and mining sites, and even mandatory safety belt in cars can be a good example of those kind of regulations.  

    It is weird if we assess the validity of a right only based on a motive. Suppose, a company is conducting a risky business. Installing a safety device would cost them a lot of money, say, US$20 million which will reduce the accident rate into 1%. If the Company chooses this option, they will pay 5 workers, each with a fixed salary of US$20,000 a year. Another possible way of doing this business is to employ those 5 people without any safety device, where each will receive an upfront payment of US$1,7 million, but the risk of deadly accident will increase to around 85%. From economics point of view, it is possible that the second option would be optimum for the welfare of the society. The company can reduce its costs, allowing them to sell cheaper products, and they compensate the employee generously for the additional risk taking.

    Now imagine that one of those 5 employees is a father to three children. Thinking about the future of his family, he decides to take that risky job with a full understanding of the high probability of death. He believe that the payment justifies his increase of risk that even in the case that he dies, the overall compensation is enough to ensure the survival of his family in the future. Should he be prohibited from doing so? Should the company be deemed liable when an accident happen and the father dies? If we care about motives in deciding whether an act is good or not, can't we consider this as an heroic action? A father who chooses to increase his probability of death for the sake of his family?

    I bet that most of you will consider this idea as a perverse one, but if we choose to assess the right to die simply from the motives, this is the consequence. It's easy to create similar cases and yet people preferences can vary significantly. It is almost impossible to find consistency of opinion in this matter. Here Law and Economics tries to provide the answer from welfare maximization issue. It might be easier to have a standardized safety regulation because not all people have the same perception of risks. Some will agree to take the risks, some will not. Creating a standard regulation could effectively solve the collective action problem among the employees. Granted there are costs associated with safety regulations, but the costs should be calculated in a way that promotes overall efficiency to the society (increase safety might increase productivity and might induce people not to participate in too risky business which may turn out to be bad for the welfare of the society).

    If we agree with the above welfare maximization analysis, the right to die should also be viewed in such instance. Thus motive is irrelevant, instead, we should ask, what's the costs and benefit for granting people with the right to die? Should we give incentives for people to die? Might be in war with other countries for the sake of gaining victory or in case of patients with terminal ill where prolonging life would be too costly and too painful for him. But in cases where there is no perceive benefit of killing yourself and even worse, where the action imposes certain costs to third parties (imagine the costs imposed to the family left behind due to the suicide), I would say that we need to give incentives for people to avoid such action.

    How can we give the incentives if the person is already dead? Well, we can do that by condemning certain type of suicidal activities that we view as wasting a precious life for nothing or where the benefits do not justify the costs of losing the life. Might not be effective for people who have lost their hope with their life, but for those who believe that their suicide can be meaningful, it could be a good deterrent mechanism. By informing them that their action would be useless and meaningless, we impose a huge costs to them for doing their action. What is the use of killing yourself in such case if people will simply disregard it?

    Another way is to impose liability to anyone who knows a person's plan to kill himself but fail to prevent such death. Again, might not work for suicide for private reasons. But if it is for the so called "public cause", there is a high probability that some people will know about the plan in advance and therefore should be imposed with an obligation to refrain the soon-to-be-dead guy from his planned suicide. This is primarily based on the least cost avoider principle. It is not cleat though whether our current law is in line with the above approach. While there is no legal sanction for a failed suicide (no court will punish you if you fail to perform your suicidal action successfully), any people who assist you in your suicide attempt can be penalized with a prison sanction of at least 4 years. The text of the law indicates active assistance, while my proposed solution is to impose liability for passive assistance.

    To close this post, I admit finding a right answer on the right to die is problematic. I am certain that some people will disagree with the notion that killing yourself could be justified as long as the perceived benefits exceed the costs. But we do have some examples on this issue, such as in war (imagine suicide mission) or in euthanasia (interesting to note that some Islamic legal scholars prohibit active euthanasia but not the passive one). It might be that there is no right answer for this problem and in the end, it's all about preferences. If that's the case, the voice of the majority will eventually determine whether a right to die should ever be granted.
  • Assessing Death Penalty - Law and Economics Style

    Imposing a death penalty or capital punishment for certain type of criminal activities would always be a controversial issue. Some people believe that the imposition of death penalty is important to create an effective deterrent effect toward criminal activities. Others believe that death penalty is against one of the basic human rights, i.e. the right to live. Before I provide my arguments below, I will have to inform you all that I am a supporter of death penalty, albeit with certain conditions.

    First of all, in normative Law and Economics, welfare maximization and efficiency are the two key terms that must be prioritized in assessing the quality of a law, including the imposition of any criminal sanctions. Why? Because in Law and Economics terms, a law would be deemed useful for the society if it can maximize the overall welfare of the people without imposing too much costs on them.  The perfect law would be pareto efficient, where all people will be better off without having any losers in the society. While that might be nice, in practice it is almost impossible to satisfy the Pareto criterion, and therefore Law and Economics usually end up with Kaldor-Hicks efficiency, i.e. a law will be considered efficient if it can maximize the overall welfare of the society (so that in general, there is a surplus for the society) and open the possibility of compensating the losers, even though the compensations have not yet been materialized. 

    I understand though that welfare maximization is not the sole value that can be adhered in a society. What about, say, fairness? However, as argued by Steven Shavell and Louis Kaplow, two prominent economists and law professors from Harvard Law School, in their book, Fairness vs Welfare, welfare should always be prioritized whenever there is any conflict between welfare and fairness principles, simply because fairness is an element of welfare maximization while welfare itself is not necessarily a part of fairness maximization. The duo provide some very interesting arguments in the book but I will discuss that in another occasion. For now, I only like to introduce the basic concept of welfare maximization in Law and Economics.

    Having said that, the next question would be: can we justify the existence of death penalty in a legal system from Law and Economics perspective? The quick answer is: it depends. The three main factors that should be considered are: (i) the costs and benefits of imposing the death penalty compared to alternative sanctions, (ii) the administration costs for death penalty, and (iii) the net effect of death penalty to the society.

    Costs of Imposing Death Penalty in Comparison with Alternative Sanctions
    With respect of the costs of imposing death penalty, suffice to say that death penalty is cheaper than prison. Killing one person is definitely easier than maintaining a person's life in the prison for certain period of time. But it would be wrong if the comparison is made only to prison. The fact that the costs of death penalty are cheaper does not necessarily means that it is superior to other type of sanctions. In fact, from economics perspective, death penalty might be inferior compared to the sanctions in the form of fines because death penalty does not produce any direct additional wealth or at least create a transfer of wealth. The only way we can say that death penalty produces wealth (indirectly) is if there is a good evidence that death penalty effectively deters crimes and therefore reduces the overall costs of criminal activities to the society and save the people's money for costs of legal enforcement.

    Administrative Costs for Imposing Death Penalty

    Another important issue is the costs for administration of death penalty. Since death penalty is irrevocable, in the sense that you can't raise the dead once the sanction has been administered, the administrative costs for getting the right decision tends to be higher in order to avoid costs of wrong decisions (such as longer waiting period for the execution of the penalty, additional costs for producing evidence, etc). Why we need to avoid these wrong decisions and why people should pay for the costs? Other than fairness related argument, Law and Economics believe that wrong judgment reduces the probability of allocating the criminal sanctions to the intended target, i.e. the real criminals. For each wrong judgment, we impose unnecessary costs to the innocent person and let the criminals free from the sanctions which means that the costs for them to do their criminal activities are reduced, inducing them to do more criminal activities.

    In other words, wrong judgment is a factor that may increase the probability of doing crimes simply because the criminals know that the probability of them getting caught and being sanctioned is reduced. So, letting too many wrong judgments will be inefficient for the society. But the same inefficiency could also happen when we spend too much money in trying to reduce the error costs of judgments. A good example would be cases where it is very difficult to proof that the defendant is guilty, such as in rape case. I have argued in my working paper here, that imposing death penalty for rape cases might be counterproductive because the process of evidence is difficult and the administrative costs for getting the right decision would be too huge. As a result, imposing alternative sanctions which are revocable in the future might be the best option for rape cases.

    The Net Effect of Death Penalty

    The most controversial aspect of death penalty is the claim that it can effectively deter crimes rate. Obviously, this is something that needs further empirical research, especially in Indonesia. I note from one of my professors that some empirical researches in the US found that high death rates in the prison can effectively deter the rate of crime. We can categorize this as an indirect death penalty sentence since you can be easily sentenced to a prison (and therefore less administrative costs for the entire process) but there is no guarantee that you will survive the prison. Apparently, having no life guaranty in the prison is scarier than having a direct death penalty where the process is longer and the possibility to avoid such sanction is higher.

    As I said above, to the extent that death penalty can be an effective deterrent mechanism, such penalty might be an efficient solution for reducing criminal activities. How can we assess the efficiency of death penalty? In simple mathematical formula, death penalty would be deemed efficient when P > (C + AC + WC), where P is the amount saved by the society from reduced criminal activities, C is the costs of imposing death penalty, AC is the administrative costs of death penalty and WC is the costs for irrevocable wrong conviction. To be more consistent, we can also add the utility function of the criminals who receive such death penalty, since in a way, we impose costs to him by taking his life.

    Based on the above super simplified model, I could tell that the basic problem with death penalty is that there is no calculation for the utility function of the victim, in fact the imposition of death penalty will never calculate the interest of the victims because they are simply out from the equation. Granted, the victim might receive some utilities from the retribution effect of death penalty, but I am not sure whether that will be enough. Again, as I said above, while death penalty might be more efficient than prisons, fines might actually be more superior than death penalty in welfare maximization and the use of death penalty should be really limited to certain type of criminal activities.

    If I have more spare time, I would love to write more on the Law and Economics analysis of death penalty just like when I write about Economic Analysis of Rape Crimes. My support for death penalty is basically conditioned upon the satisfaction of the above model. If the overall costs of death penalty are bigger than the expected reduction in criminal activities, then supporting death penalty would be useless as it is the same with reducing the welfare of the overall society. Personally, I will give more support to any sanctions that can compensate the victims while still giving deterrent effect to criminal activities, such as a significant amount of fine and/or forced labor.

    My another thought would be that death penalty should only be imposed to criminals whose activities are considered very dangerous to the societies and therefore letting them return to society without effective way of preventing them from doing the same thing would be too costly, such as serial murderers. But this can lead to another debate on what type of dangerous activities that should be sanctioned with death penalty. On that matter, I will reserve it for another time.
  • Why I Disagree with Legalization of Prostitution

    I guess I have not fully elaborated my points on my previous post on prostitution and inequality, as I might need to address some concerns from those who are in favor of legalizing prostitution. You can read some of their main arguments here. Their arguments can be summarized as follows: by regulating the industry, the government can give incentives to the industry players to treat the women better, create a safer environment, and by doing so, helping the women for a better life. Furthermore, if it's truly a voluntary transaction, people should be free to do so. As good as they may be, I disagree with these lines of arguments, and I am not even talking about morality issues.

    First of all, I doubt that regulating prostitution will be more efficient than making it illegal. We know that people respond to incentives. In other words, the government may require people to comply with certain regulations, but if there are no legal enforcements, it is most likely that they will not comply. The case is similar to prostitution. So when the government actually regulates prostitution, there would also be enforcement costs to ensure that the entire industry comply with the rule. Can the defenders of legalization show that the costs will be cheaper rather than enforcing law against prostitution. Because if the net effect is same, why bother legalizing it?

    Second, I'm surprised if there is any free market defenders who support the notion that the government should regulate prostitution in order to protect the women. Most free market defenders despise government intervention in the market. The market works best when there is no intervention as usually, people will only enter into a voluntary transaction if that transaction benefits the relevant parties. So I find it amusing that some people ask the government to interfere with the prostitution market. Not only it shows that the business is inherently bad that we need government help to deal with it, it also shows that they tend to forget that intervention by regulation does not always end up well, which will lead us to my third point.

    The major question is, what type of regulation that will be needed for an industry like prostitution? To what extent will we allow people to freely sell their body? Can we say that in line with the rising of the price, the consumers are allowed to demand more extreme sex actions? Should we allow consumers to sue the women in case their performance is not satisfying? Should we allow wives to sue the men and the prostitutes in case the wives found out the act in accordance with the principle that each party should be liable for the externalities that they cause to third parties and therefore are obliged to compensate such third parties? Or, in accordance with the Chicago style, when transaction costs is low, resources will be allocated efficiently, meaning that the prostitute and the husband will "pay" the wife for the right of having an affair.

    I mean if we agree that people are free to do everything as long as they "voluntarily" agree to do so, why bother making safety regulation? This is precisely in line with the case of whether there should be a mandatory safety regulation in a construction project if the employer has offered bigger payment for those who want to take higher safety risks. The main issue is what would be the correct price where additional risk taking is justified. If those who agree with legalization of prostitution can accept this notion, I will rest my case. But if we are still talking about protecting the right of the prostitutes, the legalization does not have a strong case other than whether the costs of enforcing the protection are cheaper than making it illegal.

    But let us stop this debate for a while. What are we trying to achieve here? The better protection of the women? Or finding what idea should win between the freedom of women with her own body and the compliance with moral values? The first is important and pragmatic, the latter is simply meaningless in practice. If we agree that the whole debate is made to find the most efficient and effective way to protect women from abusive treatment, then we are in the same track.

    Let us remember that prostitution consists of 2 type of worker, i.e., those who might enjoy the profession and receive good benefits (the lucky ones), and those who are not lucky, which will stay in poverty, who are prone to high risk of death and terrible sickness. Those who have already enjoy a good position surely want to regulate the profession. It gives them better protection. But the case is not the same for the unlucky ones, which sadly, can be in the majority.

    Now, for the unlucky ones, I disagree with legalization. The fact that they are in that state shows why we should not trust that the pimps and customers will treat them better without strong enforcement action from the government. As I said in my previous post, rather than spending costs for enforcement of regulation, why not spend the money to actually reap the profits of the pimps and the money of the customers to compensate the prostitutes? What do you think is the main incentive for pimps to send women to prostitutes? Money! If such incentive is taken, would they still do it? If they are being required to give their entire profits and capital from the business and then the funds are distributed to the women, wouldn't that be better? Of course the sanction will not work if the fine does not reflect the entire benefit of the business. This is standard economic analysis, if the benefits of doing criminal activities are higher than the costs, the criminal will most likely do it.

    So if the defender of legalization says that the fine is not effective, most probably because the fines do not reflect the whole economic benefit of prostitution and the prostitutes do not receive any compensation, which of course will induce them to return to their usual life. Remember, in my proposed solution, prostitutes should not be sanctioned. The target should be the pimps and customers, which will effectively increase the costs of doing prostitution and hopefully reduce the level of prostitution itself. I can imagine a sanction where not only the customers will need to pay a huge fine (which will be distributed to the prostitutes), his name will be also publicly announced. This business can survive for so long, partly due to anonymity, destroying such advantage will impose a significant costs to the customers and I expect that their behavior will be pretty much affected.

    Another thing about legalization, is there any guarantee that legalization of prostitution will effectively erase all illegal prostitution? If the legalization is made on the basis that we need to protect the women, is there any guarantee that customers will comply with all the safety standard regulation? Isn't there a possibility of a black market where all of those earthly desires, which reject all notion of limitation, still exist? And in such case, legalization does not have an effective purpose other than dividing the customers into two types, the nice ones who go to the legalized brothel, and the bad ones who go to the illegal brothel. Of course, further empirical research is needed to support this argument. But this is something that must be considered by the proponent of prostitution legalization in case the probabilities are huge.
  • MacKinnon, Prostitution, Inequality, and a bit of Economic Analysis

    Today, I attended a public lecture by Catherine A. MacKinnon, a world-known feminist and also a professor of law from University of Michigan, on Trafficking, Prostitution, and Inequality. I consider this lecture as a very important event as it gave us a clear understanding on the negative effect of trafficking and prostitution. I'll first summarize MacKinnon's arguments and then I'll provide a Law and Economic style of analysis to support her arguments.

    MacKinnon Arguments Against Prostitution

    MacKinnon opened her argument by saying that there is an inconsistent way of thinking within the public regarding trafficking and prostitution. All people agree that trafficking, i.e. selling human beings to other humans by force, is bad in any way. However, the opinions are divided when we discuss about prostitution. Some people believe that prostitution is inherently bad, either from morality or gender equality points of view. While some other people believe that prostitution is a symbol of freedom and entrepreneurship of women, after all, it's about the freedom of women to use their body as they may like and prostitution is just another form of profession, hence, the term commercial sex worker.

    For her, the term commercial sex worker is utterly ridiculous and she asked how could people consider prostitution as just another type of profession? Based on her own and several other empirical researches, prostitution is definitely not a decent profession, if not at all. A recent polling from several prostitutes showed that more than 89% of them wish to be able to leave the job. Most of prostitutes end up in prostitution not because of free will, but because of coercion (usually from trafficking) and bad financial condition.

    Basically, these prostitutes enter the job because they don't have any better options. The working condition is harsh (in India, an average prostitute can handle around 8,000 men in a year! Not to mention that they are being required to satisfy all the needs of their customer, whatever that is, as long as the customer pays), they are prone to various sexual transmitted diseases and psychological trauma (MacKinnon found that the level of trauma within prostitutes is similar to those who have experienced war!), and they are also prone to harmful activities that may result in their death (various customers have different taste of sexual activities and it is not unusual to have customers who love violence for the sake of enjoying their sex). In short, it's not a good life. In fact, MacKinnon asked everyone in the room, would they ever consider to take that kind of job if they have a better option?

    MacKinnon further argued that prostitution pretty much relates to gender inequality. Surely there are male prostitutes, but compared to female prostitutes, their numbers are miniscule. Moreover researches show that it is far easier for the male prostitutes to opt out from their profession compared to their female counterparts. Female prostitutes are usually treated as goods, objects. The inequality is even clearer when we see how society treats the customers very well, simply from the fact that they are called as customers, in other word, they are just simple buyer who wish to purchase sex with women as an object of satisfaction. No wonder MacKinnon refused to use the word customer, she named these group of guys as John.

    MacKinnon also argued that it is absurd to consider that female prostitutes entered into the business of prostitution because they have already given their "consent" and therefore people should leave them alone and let the market does the job, i.e. voluntary transaction among the people. In reality, their consent is not real, their consent was given due to weak conditions and because of the payment that they receive from the Johns (and they don't even receive the payment in full, most of the payment will go to the pimp). Based on that understanding, MacKinnon stated that having sex with prostitutes is essentially a rape in another form.

    So what's the solution for this problem? MacKinnon offered the Sweden System, where prostitution is being criminalized, but not for the female prostitutes, rather, the pimps and the customers. Various empirical researches showed that the result of this policy is quite effective, the prostitution rate is going down and more women can be released from the hell that they experience in the world of prostitution. The reason for adopting this policy is because there is already an inequality between the female prostitutes and the male customers and pimps. Imposing the same sanctions to the prostitutes increases the inequalities and misses the real villains who are responsible for the existence of prostitution.

    MacKinnon also rejected the legalization of prostitution as a solution to fight the bad treatment that prostitutes receive in her job. In one of her researches, she found that even when there are legal prostitution center, some people still prefer to use the illegal prostitutes because they refuse to have their sexual activities and tastes being regulated. In the Dutch, one pimp complains that the regulation of having pillow in the room (which apparently is required in order to increase the level of comfortness of the customers) is bad, because some prostitutes were being killed by pillow. It's a weapon of murder. In other words, the Government is not a good law maker when dealing with prostitution because they don't understand the nature of this business.

    An Economic Analysis of Prostitution       

    Simply speaking, I support MacKinnon arguments, and I will try to show that not only prostitution is bad from the perspective of morality and gender equality, but also from economics point of view. The standard economic analysis usually says that whenever there is a voluntary transaction between two parties, the government should not interfere since it is assumed that these people would never enter into the transaction if both are not better off as a result of the transaction. I agree with this notion. The problem is, some people assume that prostitutes sell their body voluntarily to other people and therefore the government should just leave them alone or even better, legalize the profession. They argue that legalization and calling these prostitutes as commercial sex worker will reduce the degradation that they receive, improve their quality of life and everyone will be better off.

    Seems correct? Absolutely not. First, you can't assume voluntary transactions exist just because people agree to sell their bodies for money. MacKinnon empirical data show that this is an illusion. The consent is not given properly, meaning that standard economic analysis cannot be applied. Instead, we must assume that without consent, we are imposing costs to the prostitutes by forcing them to do something that they don't prefer in the first place. We further know that the payment that they receive does not reflect the costs and risks that are being imposed to them and on top of that, they don't even have the flexibility to leave the job. It is clear then that in terms of causality, the pimps and the customers are harming the prostitutes. From tort law perspective, this should entitle the prostitutes to claim compensation from their customers and pimps.

    In this case, the above reasoning is in line with MacKinnon's Sweden System. If the ones who inflict harm are the customers and the pimps, it does not make any sense at all if the prostitutes are being penalized. In fact, it would be even better that not only the pimps and customers are being criminalized, they must also be required to compensate the prostitutes for the harm that they inflict. In this case, the result will be efficient. First, there will be less incentive for pimps and customers to conduct their bad activities. Second, possibility of women being released from the brothel is increased and the fact that they can receive proper compensation is also a good way to provide them a fresh start for their life.

    Now, some people argue that enforcing sanctions is costly, while legalizing action is profitable since the government can tax such action. In a sense that's true, but again economic is not a rigid science, it is flexible depending on the situation. And I can say that legalizing prostitution is simply a stupid idea. Yes, the government can tax the activities, but it means that the government strategically chooses to abandon their own citizens, i.e. the prostitutes, to live in misery, which of course is not efficient.

    There is a better way, i.e. criminalizing the activities and target the pimps and the customers. The government doesn't  need to always send these guys to prison. It can fine them to pay a huge amount of money to the government, where some are used to pay the legal enforcement costs and some are used to compensate the prostitutes in order to start a new life. This could be a cheaper solution and we know that pimps and customers have quite a lot of money. If not, pimps will not maintain prostitution business and guys will not choose to pay for sex if they can somehow get it for a cheaper price through other means.

    To close this post, I would like to give an interesting definition of prostitution from Namibia (courtesy of MacKinnon of course), i.e. prostitution is any type of sexual activities that are being traded with commodities other than sex. This is deeply insightful, i.e. that sex should only be traded for the joy of sexual activities itself. Let us hope that someday we will be able to banish all type of prostitution in this world.
  • An Economic Analysis of Rape Crimes (Working Paper)

    Pursuant to my post here, I manage to elaborate my arguments into a decent working paper. I'm planning to submit this paper to an Indonesian law journal, but I would like to hear first some useful comments from my readers that I can use to improve the paper. So if you have any comments, please don't hesitate to contact me, I would be grateful for that. 
  • An Economic Analysis of Rape Crimes

    It's been a while since the controversial discussion on whether mini skirts induce men to rape women. Various debates have occurred but I would say that most of the times they miss the important points. You see, criminals are human being and to some extent they will calculate the costs and benefits of doing their criminal activities. It does not even have to be a sophisticated analysis, it can be in the form of a quick analysis that anyone can do by himself.

    Let us use corruption as an example. The benefit? A huge amount of money to be used by yourself and maybe your family. The costs? Going to prison and/or losing your corruption assets. Then do a simple calculation on the probability of you getting caught by the authority and how severe the punishment will be. If you think that the probability of enforcement is low and that you can buy your freedom later on, then the benefits of corruption outweigh the costs. The result? People will have strong incentives to corrupt.

    The same analysis goes with rape. Why do men rape? Is it because the urge of their hormones? Because they can't withstand the sexiness of a hot girl in front of them and thus they must channel their sexual needs by raping such girl? Well, those might be added to the equation, say the benefits of rape. But there are more important factors and those are timing and situation for the rape itself. A rational human being, even the stupidest one will never conduct a disgusting activity such as rape at the middle of the day in front of many people. The costs will be too big to bear by any rapist existing in this world. And there would be other ways that are far cheaper and less risky to channel your sexual needs in the above case, such as masturbation or even looking out for a prostitute (yes there are other costs associated with having sexual activities with a prostitute, but we can safely assume that the costs should be lower than raping a woman in front of the public).

    Going back to timing and situation. Why do I say that these are the main factors in determining whether a rapist will conduct his evil deed? Timing and situation affect greatly the success rate of a rape! And each rapist who have minimum thinking capacity knows that if he has a good chance to rape someone and a small chance of getting caught, the benefits of the rape outweigh the costs. You know the rest of the story. Furthermore, I would assume that in the mind of the rational rapist, whether the victim wears a mini skirt or a long dress is simply a small factor in the equation. In the end, a rapist will do something to let the victim out of her dress, longer dress takes longer time, but that's it. If the timing and situation do not permit, I dare to say that no one will rape even an almost naked woman.

    Even worse, rape is not a criminal activity that can be easily proofed in the court. Usually the crime is conducted behind the scene and the longer the crime is reported to the authorities the harder it would be to find any supporting evidence for bringing the rapist to justice. All of these facts minimize the cost of rape crimes! The fact that the public normally blame the victim does not help at all. To certain extent, it induces the authorities to think that the victims have a role in the crime and you may say this is as a baseless claim, but I would assume that such kind of thinking will slow them down in doing their job. Imagine this: a friend comes to you saying that he lost his wallet because he put it carelessly in a public park. Would you quickly help him, or will you say: "dude, that's stupid and is your own fault, and now you ask me to help you?".

    Will all of the above things, how can we effectively prevent rape crimes? By not working together in creating a safer environment and instead blaming the victim, the general public are actually responsible for supporting the crime itself! Honestly, I don't even want to be a part of it. Would you want to be a part of such bad act? I hope not.

    Note: For follow up readings on the economic analysis of criminal activities, I would suggest you to read the articles of Gary Becker (Crime and Punishment: An Economic Approach and The Economic Approach to Human Behavior can be a good start), a Nobel laureate from the University of Chicago. He writes a lot and has a very nice blog with Judge Richard Posner here.
  • Definition of Witness: A Grammatical Misunderstanding

    On 12 August 2011, the Indonesian Constitutional Court issued its decision concerning judicial review of Law No. 8 of 1981 on Criminal Procedural Law ("Criminal Procedural Law"). You can download the decision here. Under the decision, the Constitutional Court deemed that the definition of a Witness should be amended from "a person who can give testimony for the purpose of investigation, prosecution, and trial on a criminal case which is heard, seen and experienced by him/herself" to become "a person who can give testimony for the purpose of investigation, prosecution, and trial on a criminal case which is not always heard, seen and experienced by him/herself".

    According to the Constitutional Court judges, the definition should be amended since based on grammatical interpretation, the term "is heard, seen and experienced by him/herself" refers specifically to the criminal case itself. As such, such definition will violate the rights of the defendant to bring witnesses that might support him in the trial process such as alibi witnesses that probably do not see, hear or experience the relevant criminal case (because the criminal case does not occur).

    I have to say that this is an issue of simple grammatical misunderstanding and the solution provided by the Constitutional Court creates another problem. Grammatically, there are two ways to read the above clause: (i) the term "is heard, seen and experienced by him/herself" refers specifically to the actual criminal conduct; or (ii) the term "is heard, seen and experienced by him/herself" refers to the testimony/information given by the witness in relation to the case at hand. In cases where we use plain meaning technique to interpret the text of law, we must also rely in the principle that plain meaning approach can only be used when it would not lead to an absurd result. Surely, using the first interpretation will bring significant trouble in practice.

    As a comparison, under the US Federal Code of Evidence, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of such matter. This is common sense, a witness can only testify about things that he/she really knows. In line with that, I am certain that the second interpretation would fit better in interpreting the definition of witness under the Indonesian Criminal Procedural Law.

    In my opinion, the solution of the Constitutional Court might create an issue concerning the competency of the witnesses. First, the fact that they don't see, hear or experience the criminal conduct by themselves does not necessarily mean that their testimony is always relevant to the case. This will open a chance for the defendant to bring any witnesses that can support him even when there is no merit of such testimony to the case, such as testimony on the character of the defendant. Trial process involves emotion and judges are not robots, and thus a good framing of the defendant is always helpful. Is this good or not? Further evaluation is needed but surely this will depend on our taste of morality and human rights.

    Second, in worst case scenario, the generality of the wording used by the Constitutional Court may also be used by prosecutors and polices for using witnesses that do not see, hear or experience the criminal case against the defendant. This is surely absurd, but judging from the absurdity of the solution, I am not surprised if polices and prosecutors exploit this loophole. Time will tell.
  • Testimony of Dead People from Twitter: Valid Evidence?

    I find this tragedy as a case with a very interesting legal feature. Basically, a boy who was driving recklessly caused the death of two of his classmates last saturday morning. How do we know about his reckless driving? Prior to their death, one of the victim shared her experience through Twitter, saying that the boy was entering a drag race with his friends as passengers! Then another victim re-tweeted the tweet, confirming the information about the boy's involvement in the drag race (I have to put a caveat here though, re-tweeting a tweet does not necessarily means that the re-tweeted tweet is true). From the news, I understand that there are two other survivors from this accident, which would be helpful as witnesses in the court. However, let us assume in this case that there is no evidence who can confirm the boy's reckless driving that night. Can we then use the written testimony of his dead friends in Twitter as the basis to punish him in the court?

    Legally, this would be a challenge. Under Article 162 of Law No. 8 of 1981 on Criminal Procedural Law ("Criminal Procedural Law"), in case a witness who has provided his/her testimony to the investigator dies before attending the trial, his/her testimony can still be read in the court. If the testimony has been given under an oath, such testimony will be treated equally with a testimony given by a witness who attend the trial. If not, I would say that Article 161 (2) of the Criminal Procedural Law will be applicable, i.e. the testimony will not be considered as a valid evidence although the judge can use it as a supporting information in rendering his decision. In any case, if the minimum rule of two items of evidence cannot be satisfied in the court, such information will be useless.

    In our case, however, the victims were already dead before they can say anything to the investigator. Thus, I doubt that their testimony can be considered at all. I also doubt that tweets can be treated as as a Letter Evidence (alat bukti surat), since it must be supported with or made under an oath. And even if it can, it will only work if it is used in conjunction with the information found from other evidence (which is none in our hypothetical case).

    As much as I am sympathetic with the victims, I must say that I'm in agreement with the law and I would not support using informal written testimony of dead people as a valid evidence even though it might contain a grain of truth. Why? Simply because you cannot cross examine that kind of testimony and therefore it would be impossible to determine its accuracy. After all, everyone can say anything in their writings, including through Twitter, and we can't verify whether they are telling the truth without further examination.

    I can only hope that justice will prevail in this case. Remember, under Indonesian Penal Code, causing death of other people due to negligence is a criminal act punishable by maximum 5 years prison. This is not something that you can get off by simply saying that you're sorry.
  • Designing Anti Corruption Policy: A Response to Cafe Salemba's Law for Sale

    A couple of days ago I found this interesting article in Cafe Salemba. Their basic idea is that competition among law enforcers in fighting corruption, i.e. the Commission of Corruption Eradication ("KPK") and the General Attorney Office ("Kejaksaan") is good as it will increase the cost of bribery and the efficiency of the law enforcers. I beg to differ with this approach, since this will only work under 2 basic assumptions: (i) both law enforcers work in a professional and clean manner or both take bribes seriously; and (ii) cases can be easily transferred between law enforcers (though it seems impossible under the double jeopardy rule). Why do we need the above assumptions in order to ensure that the competition system will work? Because if not, one of the law enforcers can act as a save haven for the bad guys simply by guaranteeing the villains that their bribe will work and that they will be protected from the other law enforcer who don't receive any form of bribery, i.e. if you have been handled by the corrupted law enforcer, there is no way that you will be transferred to the other law enforcer. As a result of this, instead of creating healthy competition among law enforcers, we actually create another super criminal organization. Now this is what I called as a true "Law for Sale".

    Designing anti corruption policy is indeed problematic and will need a thorough analysis. However, I would like to raise some general ideas that might be used in fighting corruption. Hopefully this can trigger a bigger discussion on how we can arrange the policy for the greater good of society. My post will deal with two designs, the design of penal sanctions and the design of the law enforcers (as a response to Cafe Salemba's post) Designing Penal Sanction for Anti Corruption Policy In my opinion, with respect to the anti corruption policy, the main focuses of our penal sanctions should be: (i) to ensure that the Government can retrieve all of the stolen assets (together with interests and any lost profits due to the inability to use those assets for certain period of time, and also the costs of investigating the cases); (ii) to prevent corruptors from repeating their criminal conduct and buying their freedom from any penal sanction; and (iii) to prevent the birth of new corruptors by imposing correct incentives. Does Indonesian anti corruption policy follow the above focuses? I don't think so.

    What I see is that we only focus on sending the corruptors to prisons in the name of justice. I hate to say this, but it's useless. What's the purpose of sending these bad guys to the prison if you can't retrieve anything valuable from them and if they can still buy their way out of it? Prison only creates additional costs and expenses. It would be cheaper if we just give them death penalty. But then again, what for?

    The biggest problem of corruption is that it diminishes the state assets. Those assets are supposed to be used for the greater good of the society, and we pay some of those assets from our taxes. Now, if the end result of our anti corruption policy is only to spend additional money to conduct the investigation for the purpose of paying the living expenses of these evil men in the prison, the entire policy is a big failure! It would be cheaper if we just let these corruptors run free. At least we don't need to pay for the expensive investigation process. If we really want to eradicate the corruption in accordance with the above focuses, the penal sanctions should be, among others: (i) taking over the entire assets of the corruptors (thus getting back the missing assets together with all of the interets and the lost profits); (ii) kicking out the corruptors from their official position and preventing them from getting any governmental position for their entire life (thus preventing their ability to repeat their criminal activities); and (iii) announcing the name of the corruptors in publicly accessed media (such as major newspapers) as a sample for their comrades (thus providing a good incentive for other would born corruptors to not follow the same path). Should we send the corruptors to the prison with the sanctions above? I believe, no. Our main interests have been satisfied, why bother imposing additional costs to the tax payer by sending these guys to the prison? What harm can these people do if they don't have any funds and access to perform their criminal activities? Designing Law Enforcers for Anti Corruption Policy In designing the policy for Anti Corruption Law Enforcers, our main focuses should be: (i) to create a task force that can deal with anti corruption cases quickly and efficiently; and (ii) to provide a better incentives for these law enforcers to perform properly. My first suggestion would be: adding more resources to the law enforcers which means that we don't need competition among law enforcers.

    What we need is cooperation and collaboration! If there are 2 law enforcers, their performances should be linked. So a bad or good performance of one law enforcer will affect the other law enforcer. This can be implemented through the financial compensation of both law enforcers. I would prefer one single law enforcer though and add more resources to such body. My second suggestion: we can provide a good financial incentive in the form of granting a portion of the recovered state assets to the law enforcer who can successfully secure those assets from the corruptors. By doing this, we increase the cost of bribery to a new level. Imagine how much a corruptor must pay now to save his ass if he must compete with a portion of his own entire assets? This is also a good incentive to increase the performance of the law enforcers. Now, other than receive an honor as clean and professional law enforcers, they can receive a better financial benefit which is connected with their actual performance. It's time to bring this anti corruption fighting to a whole new business. This is my version of "Law for Sale".

  • The Protection of Criminal Suspects in Law and Economics Perspective

    Forthcoming in Jurnal Teropong Edisi RUU KUHAP 2015 | 23 Pages | Posted: 10 May 2015 | Date Written: April 28, 2015

    Public Choice Theory and its Application in Indonesian Legislation System

    24 Pages | Posted: 8 Oct 2012 | Last revised: 8 Nov 2014 | Date Written: October 8, 2012

    Special Purpose Vehicle in Law and Economics Perspective

    Forthcoming in Journal of Indonesia Corruption Watch, 'Pemberantasan Kejahatan Korupsi dan Pencucian Uang yang Dilakukan Korporasi di Sektor Kehutanan', 2013 | 15 Pages | Posted: 22 Aug 2013 | Date Written: August 18, 2013

    Legal Positivism and Law and Economics -- A Defense

    Third Indonesian National Conference of Legal Philosophy, 27-28 August 2013 | 17 Pages | Posted: 22 Aug 2013 | Last revised: 3 Sep 2013 | Date Written: August 22, 2013

    Economic Analysis of Rape Crime: An Introduction

    Jurnal Hukum Jentera Vol 22, No 7 (2012) Januari-April | 14 Pages | Posted: 12 Nov 2011 | Last revised: 8 Oct 2012 | Date Written: May 7, 2012


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