Knowledge And Decisions

In an ideal legal system, the costs of determining guilt or innocence would be held close to the minimum costs of gathering information and determining its veracity to some acceptable level of probability — “beyond a reasonable doubt” in the case of guilt, and to whatever level of probability would socially justify dismissing charges or discontinuing the investigation if the defendant or suspect appeared to be innocent. Since these costs are positive — indeed, substantial — even an ideally functioning legal system would not wholly eliminate crime, but there would be some optimal quantity of crime¹⁹¹ based on costs of knowledge, costs of precautionary measures, and the inconveniences imposed on innocent parties as a result of rules, arrangements, investigations, and suspicions incident to crime-prevention or crime-detection. While the concept of an “optimal” quantity of crime may be uncomfortable, it is also clear that no one is prepared to devote half the Gross National Product to stamping out every residual trace of gambling. Nor are we even prepared to reduce the murder rate at all cost — when that would mean such stringent administration of homicide laws and such low levels of proof required for conviction as to cause some physicians to avoid accepting some or all patients who might die while under their care. There would be no social gain from allowing thousands to perish needlessly for lack of timely medical care, in order to reduce murders by one hundred. Obviously, no one would advocate going to such extremes regarding gambling, murder, or any other crimes, but the point here is to indicate the reasons why — reasons that apply, to some degree, across a much wider range of situations.

In crime control, as in other social processes, decisions and evaluations must be incremental rather than categorical. It is pointless to argue that this or that action will or will not stop this or that crime.¹⁹² Nothing short of capital punishment will stop even the individual criminals already caught and convicted, much less others, and no one is prepared to use capital punishment for all crimes. The balancing of social costs implied by incremental decision making on crime control includes costs to all parties, including criminals. Virtually no one is prepared to impose unlimited costs — penalties — for petty crimes or disproportionate penalties even for serious ones. Costs (penalties) are imposed on criminals to reduce the costs they impose on others. If a wrist slap would deter murder, then that would be the socially optimal punishment, in the sense of minimizing the total social costs associated with crime. The argument for some harsher punishment is that a wrist slap will not reduce murders as much, if at all. That is, minimizing the costs to criminals is not minimizing social costs but only externalizing more costs to victims.

Changes in the criminal law change the effectiveness with which knowledge can be transmitted to those deciding innocence or guilt, to criminals contemplating crime, and to the voting public assessing their experience and assessing the protection offered — or not offered — by the criminal justice system.

There are many sources of knowledge, and the behavior of legal authorities puts a higher or lower cost on its transmission or effectiveness. The simple knowledge that a crime has been committed can vary in its availability to the criminal justice system according to the costs imposed on victims, witnesses, or informants. The costs of reporting rape can obviously be increased or decreased substantially by the way police respond to rape victims, by the way opposing attorneys are permitted to cross-examine the victim in court, and by the likelihood that a convicted rapist will be either turned loose soon (perhaps to retaliate against the plaintiff or witnesses) or given a retrial on a technicality. In the landmark Mallory rape case,¹⁹³ for example, the retrial ordered on appeal was the same as an acquittal, because the victim could not bear to go through the emotional trauma again. The abstract knowledge of guilt — from the defendant’s confession as well as the victim’s accusation — was not socially effective knowledge. Rape is a dramatic and readily understood example of a crime whose very existence can be socially and effectively known only according to the costs imposed by the legal institutions’ behavior. But the same principle applies more generally, and includes laws and practices regarding publication of the identity of informants or the addresses of plaintiffs and witnesses.