Adel Stein

Informational Paradox and the Pricing of Crime: Capital Sentencing Standards in Economic
Perspective
Author(s): Richard P. Adelstein
Source: The Journal of Criminal Law and Criminology (1973-), Vol. 70, No. 3 (Autumn,
1979), pp. 281-298
Published by: Northwestern University School of Law
Stable URL: http://www.jstor.org/stable/1142574
Accessed: 26-07-2017 04:58 UTC
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms
Northwestern University School of Law is collaborating with JSTOR to digitize, preserve and extend
access to The Journal of Criminal Law and Criminology (1973-)
This content downloaded from 163.178.101.228 on Wed, 26 Jul 2017 04:58:17 UTC
All use subject to http://about.jstor.org/terms
990 1-4 169/79/7003-028 1 S02.00/0
Vol. 70, No. 3
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY
Printed in U. S. A.
Copyright ? 1979 by Northwestern University School of Law
CRIMINAL LAW
INFORMATIONAL PARADOX AND THE PRICING OF CRIME: CAPITAL
SENTENCING STANDARDS IN ECONOMIC PERSPECTIVE
RICHARD P. ADELSTEIN*
INTRODUCTION set of five decisions announced simultaneously in

the summer of 1976,6 the Court considered the
The criminal sentencing process involves two
essential considerations: the abstract nature of the constitutionality of statutes that permit trial courts
crime and the individualized circumstances in to exercise discretion in imposing the death pen-
alty. Each case involved a balance between legis-
which the crime occurs. The process of individual-
lative and judicial determinations of when to apply
izing a sentence to reflect a particular criminal
the death penalty. The cases thus posed the ques-
transaction requires sentencing authorities to ex-
ercise substantial discretion. The United States tion: "What degree of individualization ofsentenc-
ing do the due process clause and the eighth
Supreme Court has recognized the problems in-
amendment permit trial courts to exercise?"
volved in permitting trial courts enough discretion
The constitutional right to due process and the
in sentencing to properly consider the individual
eighth amendment's protection against cruel and
circumstances of a crime' without sanctioning an
unusual punishment are inherently subjective con-
arbitrary or capricious exercise of the sentencing
cepts that can be difficult to apply in specific
power.
situations.7 This article will argue that an economic
In Moore v. Missourt,2 for example, the Court
analysis of sentencing procedures can demonstrate
considered a challenge to the practice of giving less
severe sentences to first offenders than to those witha more logical basis for analyzing these issues in
capital cases. The economic analysis will substan-
a history of prior convictions in cases where statu-
tially clarify the normative issues involved in indi-
torily identical criminal acts were involved. In
vidualized sentencing and, in fact, will reveal a
upholding this practice, the Court read the equal
rationale that closely corresponds to the results and
protection clause of the United States Constitution
reasoning actually used by the Court.8 Moreover
to require "that no different degree or higher pun-
this economic analysis will point out a central
ishment shall be imposed on one than is imposed
on all for like offenses," but found no constitutional 6 Roberts v. Louisiana, 428 U.S. 325 (1976); Woodson
bar to "different punishment for the same offense v. North Carolina, 428 U.S. 280 (1976); Jurek v. Texas,
428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242
... under particular circumstances, provided that (1976); Gregg v. Georgia, 428 U.S. 153 (1976).
it is dealt out to all alike who are similarly situ- 7 Legal scholars have generally treated the problem as
ated."'3 one of realizing the related ideals of horizontal equity
This article focuses on a recent manifestation of (treating equals equally) and vertical equity (punishing
more serious offenses more severely). See, e.g., M. FRAN-
the constitutional limitations on sentencing, a series
KEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973);
of difficult cases involving the constitutionality of
Coffee, The Future of Sentencing Reform: Emerging Legal Issues
the death penalty and the procedures under which in the Individualization of Justice, 73 MICH. L. REV. 1361
it is imposed. In these capital punishment cases,
(1975); Dershowitz, Indeterminate Confinement: Letting the
Punishment Fit the Crime, 123 U. PA. L. REV. 297 (1974);
McGautha v. California,4 Furman v. Georgia,5 and the
Diamond & Zeisel, Sentencing Councils: A Study of Sentence
Disparity and Its Reduction, 43 U. CHI. L. REV. 109 (1975);
* Assistant Professor, Department of Economics, Wes-
leyan University; 1975, J.D.; Ph.D. University of Penn- Note, The Constitutionality of Statutes Permitting Increased
sylvania; M.A.T., 1969, Harvard University; S.B., 1968, Sentences for Habitual or Dangerous Criminals, 83 HARV. L.
Massachusetts Institute of Technology. REv. 356 (1975).
'See, e.g., Williams v. New York, 337 U.S. 241, 247-49 " This melding of economic and equitable concerns in
(1949); Pennsylvania v. Ashe, 302 U.S. 51, 55 (1937). constitutional adjudication involving the criminal process
150 U.S. 673 (1895). is not limited to this line of cases. For a similar analysis
: Id. at 678. See also Leeper v. Texas, 139 U.S. 462, 468 of Santobello v. New York, 404 U.S. 257 (1971), and
(1891); Missouri v. Lewis, 101 U.S. 22, 31 (1880). other cases dealing with negotiated guilty pleas, see Adel-
4 402 U.S. 183 (1971). stein, The Negotiated Guilty Plea: A Framework for Analysis,
" 408 U.S. 238 (1972). 53 N.Y.U.L. REV. 783 (1978).
281
282 RICHARD P. ADELSTEIN [Vol. 70
problem in the sentencingisprocedure:
unavailable. Alternative
theorganizational
difficulty modes
in gathering and disseminating which centralize allocational decisions areoni
information inferior
the
consequences of committing a crime.
to markets in their ability to allocate efficiently
This approach to constitutional because they analysis
are less able to requires
extract the requisite
a fresh perspective on the economics
cost information in useful of legal and timelyinsti-
forms.9 But
tutions in general. The criminal justice system
where markets fail and the goal of efficient can alloca-
be viewed as a mechanism designed
tion remains, nonmarket to solutions
exactmust the be sought
"price" of a crime from the criminal.
and careful consideration Everygiven tocrimethe relative ca-
is a cost imposing activity. Itofis
pacity thesea transaction
alternative institutional in forms to
which the criminal derives some satisfaction while
gather and use the information necessary for cen-
imposing initially uncompensated (external) tralized
costs allocational decisions.
upon a set of victims which includes both the direct
Since the pathbreaking work of Gary Becker,'o
victim of the crime and society in general. Just as
economic analysis of the criminal process has
in every economic transaction the buyer mustlargely
pay drawn upon this theoretical framework and
the seller an acceptable price, the criminal should
postulated a systemic objective of efficient resource
pay, for purposes of efficient allocation, a priceallocation.
for Following Becker, several writers" have
the satisfaction derived from the cost imposing
emphasized the formal specification of efficient
activity. This notion of a "price" for a crime is
"marginal conditions," i.e., specific penalties to be
manifested in the proportionality that governs
levied against individual offenders, which would
criminal sentencing. Generally, more serious crimes
fully internalize the costs imposed upon others by
result in harsher penalties to the offender. their
The crimes. Were the information necessary to fix
"seriousness" of a crime is actually a measure of penalties actually available, their application
these
the total cost imposed by the crime. Clearly,woulda result in an efficient allocation of resources
peaceful society could not tolerate individualtovic-
criminal activity and its control given the un-
tims exacting the "price" from criminals, thus the
derlying distribution of income and preferences.
sentence imposed by the court forces payment However,
to this inquiry into systemic efficiency
society in general for the total cost of a crime. has diverted attention from issues which are essen-
The problem of crime and its control is,tial in to a positive understanding of the criminal
economic perspective, a special case of the larger
process as it exists in the real world. The question
problem of allocating resources efficiently inarises
the as to whether there are actual or realizable
presence of external effects. With typical costinstitutional
im- structures which can implement these
marginal conditions in practice. Can an institution
posing activities, the market mechanism effectively
extract information sufficient to define the relevant
regulates the activity. The activity will be required
to bear the costs for the resources it uses. These
prices necessary to organize the myriad of trans-
actions into an efficient system? If these extant
costs will be calculated by those in the best position
to know them in determining how much activity structures do exist, how have these structures them-
will be undertaken. In other words, the costs willcome to be organized and why?
selves
be internalized and an efficient allocation of This analysis specifically addresses the issue of
sources realized. institutional form and organization in the criminal
However, there are cost-imposing activities for
process. In this as in other externality situations,
the central problem in the search for institutional
which there is no market for the primary resources.
mechanisms to facilitate efficient allocation is the
Criminal activity is one such cost-imposing activity
in which the market mechanism does not operate
to internalize the costs. As a result, the victims of Hlayek, The Use of Knowledge in Society, 45 AM.
" See
the activity remain the cost bearers. SinceECON.
the REV. 519 (1945).
number of cost bearers may be great and since1o See Becker, Crime and Punishment: An Economic Ap-
each may bear a different cost, the practical proach,
diffi- 76 J. Pot.. EcoN. 169 (1968).
" See, e.g., R. POSNER, ECONOMIC ANALYSIS OF LAW
culties involved in organizing these transactions
(1972); G. TULLOCK, THE LOGIC OF THE LAW (1971);
are likely to be insuperable. Thus, the costs Diamond
of the & Mirrlees, On the Assignment of Liability.: The
criminal activity remain uncompensated and ex- Case, 6 BELL J. ECON. 487 (1975); Harris, On the
Uniform
ternal to the market mechanism. Economics of Law and Order, 78 J. POL. ECON. 165 (1970);
Concern with systemic efficiency leads one to Stigler,
ask 7The Optimum Enforcement of Law, 78 J. POL. ECON.
526 (1970). For an application of this analysis to tort
how an efficient level of aggregate cost imposition
liability, see G. CALABRESI, THE COSTS OF ACCIDENTS: A
can be achieved in cases where the market solution LEGAL. AND ECONOMIC ANALYSIS (1970).
1979] THE PRICING OF CRIME 283
acquisition and dissemination these exchanges. The of informational

necessary problems info
that
mation.12 Markets in externalities confront human transactors fail become the key to th
because
information required understanding to permit the legal institutions which
efficient have
transac
tions, the magnitude of evolved in response to
personal them. A and
costs developmental
benefi
resulting from various externality
perspective emerges; the evolution relationship
of observed legal
and the identities of those institutions can be rationalized in terms
involved, of their
generally im
pacts upon individuals who
relative have
efficacy noindividually
in facilitating opportunit efficient
or incentive to reveal the extent of the external criminal transactions given the practical obstacles
effects upon them. But systems of criminal to justice
market organization.
(as well as systems of tort liability) can be seen as
Section I sets forth cognate models of the exter-
imperfect but operational market-like structures nal costs imposed by tortious and criminal activi-
which encompass mechanisms to extract thisties infor-
as a demonstration that markets will generally
mation in a form that will allow the identification fail to define punishment prices sufficient to permit
and completion of efficient transactions on a case-
the completion of efficient transactions. This leads
to an examination of the way in which American
by-case basis. Our concerns here are the properties
of these institutional structures and the variations legal institutions have evolved in both civil and
criminal contexts to fulfill this role. Section II
in form that result from differences in the nature
of the external effects which give rise to them. interprets
The the recent death penalty cases as an
specifics of organization in the legal process,attempt
this to ameliorate informational problems and
to facilitate a sentencing procedure that will en-
article argues, can be directly related to the human
characteristics and capacities of individual courage
deci- efficient crimes. Section III concludes with
a brief discussion of the positive and normative
sionmakers and the problems they face in acquiring
necessary information in various exchange environ-
aspects of these issues and the role of the criminal
ments.' process in a larger social context.
The institutional approach thus entails a basic
I. THE ORGANIZATION OF EXCHANGE IN CRIMINAL
shift in emphasis from the factors that generate an
TRANSACTIONS
efficient system to the act of exchange itself and
the environment in which it takes place, an envi-
A. INFORMATIONAL PROBLEMS IN MARKETS FOR
ronment often characterized by imperfection or CRIMES AND TORTS
unavailability of essential information. Where in-

The basic economic theory outlined in the
formation is difficult or impossible for individuals
duction suggests that criminal sentencing
to obtain, markets and other institutional forms
Anglo-American criminal process is an attem
can be seen as alternative modes of organizing
measure the damages caused by an offender
lawful activity and to impose the cost of
12 See, e.g., Arrow, The Organization of Economic Activity:
damages upon the offender in the form of
Issues Pertinent to the Choice of Market versus Nonmarket Allo-
cation, in PUBLIC EXPENDITURES AND POLICY ANALYSISishment price." To analyze the transaction
results in a criminal sentence, it is necessary f
(1970); Baumol, On Taxation and the Control of Externalities,
62 AM. ECON. REV. 307 (1972). A more general statement expose the precise nature of the "price" of a
of this problem is found in K. ARROW, THE LIMITS OF
Although the abstract nature of the crime i
ORGANIZATION 9-43 (1974).
R In this respect, the present analysis owes much to
the primary basis for a determination of it
the "organizational failures framework" set forth in the
O. law has recognized two other elements.
WILLIAMSON, MARKETS AND HIERARCHIES: ANALYSIS AND criminal act harms indirect victims who are not
involved in the actual criminal transaction. And
ANTITRUST IMPLICATIONS (1975). In general, this approach
to economic organization is primarily concerned with
second, a precise calculation of the cost of a crime
situations where, because of the characteristics of the
depends upon the particular circumstances in
individual parties to a given transaction or imperfections
which it occurs.1
in the structure of the particular market involved, trans-
actions that may otherwise result in benefits to the poten-
tial traders fail to be consummated. This combination of 14 Pollock and Maitland trace the English practice to
human and environmental factors is viewed as a source the time before the line separating crime from tort had
of cost or friction in the conduct of exchange in marketsbeen sharply drawn:
and motivates the perception of many kinds of organi- A deed of homicide is thus a deed that can be
zations and social institutions as alternative mechanisms
paid for by money. Outlawry and blood-feud alike
that evolve in response to these costs and permit the have been retiring before a system of pecuniary
completion of mutually beneficial transactions where compositions.... From the very beginning.., some
markets fail to do so. small offenses could be paid for; they were "emend-
Thus, for example,

Each criminal act produces a severe
set penalties for crimes of
of external
terror can be understood in terms of the clearly
effects with two distinct kinds of cost, economic
and moral. These costs are imposed on two classes substantial direct and indirect moral cost in-
of victims, direct and indirect. Economic costs volved.i Moreover, the apparent disparity in s
reflect personal welfare losses and are consequentlycost imposed for otherwise identical statutory
easily envisioned in material terms. Economic costs fenses can be traced to variations in moral cost.
are generally borne by the direct victims of an This is because the outrage created by a given act
is sensitive to the identity and social status of both
offense and can often be the subject of a tort action.
The lost income and medical expenses suffered by the victim and offender and the peculiar circum-
the victim of an assault are examples of directstances under which the crime was committed. For
example, a presidential assassin will probably pro-

economic cost. But economic costs are also imposed
on indirect victims who are members of the com- voke a greater quantum of social outrage than most
munity. This cost is reflected in the decrease murderers,
in but a child who commits murder may
material security and the decrease in incentivesbenefit
for from a sense of sympathy which mitigates
acceptable modes of behavior. For example, the moral costs of his act. This results in the
a bank
robbery not only harms the bank robbed, it individualization
may of criminal sentencing, a princi
also result in increased insurance rates for other ple which permeates the American criminal proce
and is one of its most distinctive features."17
banks and may even stimulate other robberies.
This characterization of social cost suggests a
Moral costs are the product of the community's
reaction to a crime based upon each individual's
useful positive distinction between crimes and torts
Tortious activity rarely results in moral costs apart
sense of right and wrong. Moral costs are measured
from
in terms of the personal indignation or sense ofthose which themselves generate separat
injustice one experiences as the result of thecauses
plight of action. Although moral costs do arise in
of the victim of a crime. They are a positive attempt
to measure the social outrage that results from
each case is less than perfect, Becker has shown that the
many crimes and which is largely borne by the
punishment price which minimizes the sum of the costs
indirect victims of crime. Moral costs need not be imposed by the offense itself and the costs of maintaining
manifested in changes of behavior on the parta mechanism
of of price exaction (and thus would lead to
systemic efficiency in the allocation of resources to crime
their bearers (and thus need not appear as changes
and its control) must exceed the actual social cost of the
in market values), nor do we imply any ethical
act itself; the scale factor is the reciprocal of the proba-
justification for them in particular cases. bility of conviction. See Becker, note 10 supra. As D.
This characterization of social cost as a combi- NEWMAN, CONVICTION: THE DETERMINATION OF GUILT OR
nation of economic and moral costs preserves INNOCENCE

the WITHOUT TRIAL (1966) and R. DAWSON, SEN-
TENCING: THE DECISION AS TO TYPE, LENGTH, AND CON-
institutional interpretation of the criminal process
DITIONS OF SENTENCE (1969) make clear, however, this
as a means of externality control. Cost-imposing
factor is generally not considered in the actual establish-
activity is controlled through the exaction from
ment an
of punishment prices in practice. Despite the low
probability of conviction which characterizes many
offender of a "price" in the form of a deprivation
American jurisdictions, sentencing authorities continue
of liberty or a pecuniary fine, which corresponds
to seek the punishment which most accurately reflects
roughly to the total social cost of the offense.'5
the true social cost of each offense without regard to this
probability. This practice supports the positive portrayal
of the criminal process as a means to facilitate exchange
able." The offender could buy back the peace thatcost imposers and cost bearers on a case-by-case
between
basis
he had broken. To do this he had to settle not onlyrather than as a mechanism designed to achieve
systemic
with the injured person but also with the king.... Aefficiency of resource allocation.
complicated tariff was elaborated. Every kind 16 Similarly,
of the graduated penalties generally associ-
blow or wound given to every kind of person ated
had with
its larcency, simple theft, robbery (which adds the
price, and much of the jurisprudence of the element
time of placing the direct victim in fear for his or her
must have consisted of a knowledge of thesesafety),
preap- and armed robbery (in which this fear is intensi-
pointed prices. fied by the use of a weapon), can be rationalized in these
F. POLLOCK & F. MAITLAND, 2 THE HISTORY OF terms.
ENGLISHIn addition, "victimless" crimes, such as prostitu-
LAW BEFORE THE TIME OF EDWARD I 451 (2dtion ed.or1968).
consensual homosexuality, can be seen as lacking
only direct
'i Price exaction of this kind will ideally lead to anvictims; there, all the external cost imposed
"efficient" level of criminal offenses in that only
appearsthose
to be moral in nature and borne by indirect cost
offenses in which the net benefit of the offender exceeds bearers.
the sum of economic and moral costs imposed by the act "1 See generally DAWSON, note 15 supra; NEWMAN, note
will be encouraged. Where the certainty of conviction
15 in
supra.
1979J TIlE PRICING OF CRIME 285
vidual is willing
actions involving direct psychic injury to pay an objectively
i.e., pain determined
value for it. effects of torts
and suffering, most of the external
In practice, two
are exclusively economic in nature. factors determine
Thus, while which rule
must be used: the moral
criminal activity imposes substantial degree of homogeneity
costs in the
entitlements
on a large number of victims, and the voluntariness
tortious activity of the transac-
tion. A homogeneous
imposes a more clearly economic cost thatentitlement
is con-protects a "good"
that is identifiable
centrated on a small and readily identical for all buyers
group and sellers in the
of cost bearers.18 This points relevant
out one market
ofsince its value
the is not a function of
central
the individual
problems facing an institution attemptingtransactors.
toInreg-
situations involving
ulate criminal transactions: each criminal trans-
entitlements that protect homogeneous goods for
action affects a large number of people in awhich highly two parties can voluntarily negotiate an
subjective manner. acceptable price, market organization based on the
In a model of the criminal justice systemproperty based rule can generate efficient transactions.
upon notions of efficient exchange, one must An first
example of this would be a typical fruit and
determine the factors that generate the cost vegetable
of a market where a transaction takes place
crime and, hence, the price subsequently due whenever
from two parties can negotiate a mutually
the offender. The classification of these factors into acceptable price.
economic and moral costs clarifies the nature of If the goods sold are not homogeneous, a market
the costs imposed by criminal acts. But if aplace crime based on the property rule can still function,
is to be viewed as a transaction, one must define a at a less efficient level. An example of this
although
conceptual object of exchange. In other words, would be an antique market where the goods in-
it is
necessary to clarify the nature of what a criminal volved are often unique and where both buyers
is "purchasing". In economic terms, this object and sellers
of are often misinformed about the value
exchange is an entitlement. According to Calabresi of an item. The decrease in efficiency is a result of
and Melamed,'9 an entitlement is definedthe as difficulties
a involved in acquiring information
collectively granted right either to impose costs regarding
in the price and quality of the good being
a given way, or alternatively, to be free of traded.
costs
imposed by the acts of others. When the legislature There are certain transactions that take place
declares an act unlawful, it is in effect placing where anvoluntary negotiations over price are impos-
entitlement with the victim. For example, asible. bank An involuntary transaction is one in which
has an entitlement not to be robbed, and, for the two parties could determine an acceptable price
prior to a transaction which may or may not
purposes of efficiency, this entitlement should only
be exchanged if the purchaser (the criminal) actually
is take place in the future, but at the moment
willing to pay a "price" greater than the value of of exchange, negotiations are impossible. For ex-
the entitlement to the bank. ample, many workers will accept a priori high risk
Entitlements can be protected by either "prop- employment for increased wages. Yet at the mo-
erty rule" or "liability rule". The property rule ment a worker is to be "injured," it would be
permits the transfer of entitlements whenever impossible
a to negotiate a price that would induce
buyer and a seller can negotiate a mutually aac- worker to volunteer to be injured. But prior to
ceptable price, whereas under a liability rule,the an event, the worker has, in essence, accepted a
entitlement can be transferred whenever an indi- price which accounts for the risk of injury he faces
on the job. Should the injury in fact occur, no
c An interesting intermediate case is the civil adjudi-
further compensation is due; the injuries borne by
cation which involves punitive or exemplary damages,
for the moral element which motivates the punitive the worker simply represent the results of a "losing
measures endows such civil wrongs with many of the play" in a lottery in which he had voluntarily
attributes of crimes. Such damages are relatively rare,
participated.
however, precisely because they blur the distinction be-
If the entitlement is fairly homogeneous, a prop-
tween tort and crime and require the jury to assess their
erty rule system can effectively regulate even in-
magnitude without formal guidance or the procedual
voluntary transactions. A good example of this is
safeguards afforded the defendant by the criminal proc-
the sale of certain medical supplies where, for
ess. See generally W. PROSSER & J. WADE, CASES AND
MATERIALS ON TORTS 1076-85 (5th ed. 1971).
example, just prior to a critical operation, a patient
19 Calabresi & Melamed, Property Rules, Liablity Rules,
would pay an exorbitant price for a medicine
and Inalhenability: One iew of the Cathedral, 85 HARV. L.
REV. 1089 (1972). necessary to save his life. But evolved market ar-
rangements, usually involving

producer dealing in identical oranges insuran
can undersell
him by revealing
nies, generally force prices these values
for honestly.such But the go
efficient level by victims
providing for
and perpetrators of crime have price
little incen- ne
prior to the actualtivemoment
to reveal the true extent at
of the harm
which or the the
tion is completed. satisfaction that has been produced. The nonhom-
The necessity forogeneity
the of these entitlements eliminates
liability rule the prob-
aris
ability that competitive forces
an involuntary transaction involveswill extract this no
neous goods. Where information.
the Moreover, the large number of dis-
transaction inv
mogeneous goods,persedthe moraluse of
cost bearers a property
suggests high coordina-
tion and information gathering
facilitated in an involuntary costs even where
situation b
ating a price priorpreferences
to the are truthfully
actual revealed.22transact
But since the valueA of crime is thus an involuntary transaction in-
nonhomogeneous
volving nonhomogeneous
ies with the individual transactors, goods. Society attempts
it is
to encourage the
to negotiate an efficient commissionprior
price of only efficientto th
tion. If crimes
entitlements are by fixing
to be penalties equal to, but no greater ef
transferred
an "objective" than, the
price costs imposed by
which individual offenses. But
accounts fo
at the moment a criminal
value of the entitlement to transaction is about to
its original h
be set prior to thetake place, an individual would not voluntarily
transaction.
accept the receipt
The principal problem of a price to permit
facing any the transfer
inst
arrangement seekingof the criminal entitlement. To permitefficien
to facilitate the efficient
transfer of criminal
tions in external effects entitlements, a price must be a
(cost-imposing
the acquisition andset before the transaction is to take
dispersion ofplace. inform
the cost of entitlements. Potential offenders must The failure of markets to extract this cost infor-
mation
have sufficient cost information prior to the com-in both criminal and tortious situations
requires the development of alternative institu-
mision of a crime if they are to distinguish efficient
tional
from inefficient cost imposition. In the usual mar-structures. These institutions must evaluate
the costs imposed by various activities and thus
ket situation, entitlements are placed with private
individuals and protected by property rule. specify
Under accurate punishment prices prior to the
competitive conditions, the advantages of a actual
decen-transaction itself. In other words, if the
system
tralized price system as a means of extracting this encourages only the efficient transfer of
criminal
cost information are well known.20 A system of free and civil entitlements, potential offenders
must have accurate information on the price they
negotiation will, in the absence of high transaction
costs, generally produce an efficient allocation of to pay. This objectification of costs in the
will have
tradable resources. Thus, in a typical marketinvoluntary
place, exchange of entitlements necessitates
a change from property rule to liability rule.
normal market pressures will ensure the establish-
However, this objectification introduces an in-
ment of efficient prices and the promotion of effi-
cient transactions. evitable probability of error. Moreover, the widely
The individualized nature of the cost imposed
dispersed moral costs of crime pose informational
problems not encountered in the civil setting. The
by crimes and torts, and the resulting nonhomo-
qualitative distinction between criminal and tor-
geneity of the entitlements involved, generally pre-
cludes this result. Since the costs vary with the tious activity motivates striking variations in the
particulars of the offense, a "small numbers" prob-organizational form of the Anglo-American legal
lem is created; every exchange is a unique trans- process. On the civil side, entitlements are privately
action (bilateral monopoly) in which the absence placed, and individual cost bearers retain the right
of equilibrating market forces provides an oppor- to be compensated directly by offenders for those
tunity for all parties to conceal their preferencescosts
in they can objectively demonstrate in court. An
bargaining.2' For example, competitive pressures example of this is the common tort case in which
a plaintiff can recover as damages compensation
will force the orange salesman to reveal his costs
for all physical and psychic injury. The economic
accurately and honestly, for if he does not, another
character of the costs involved and their relatively
2o See Hlayek, note 9 supra. narrow incidence enable the civil process to rely
2"' WILLIAMSON, note 13 supra, identifies this combina-
tion of small numbers and opportunistic behavior by 22 These points are discussed further in Adelstein, supra
potential traders as a core source of market failure. note 8, at 793-95.
upon this arrangement as a tomeans

generally sufficient of gener
compensate the individual
dependable information
moral costs ofon the
the offense costs
involved. impos
Criminal pun-
tortious activity. Cost specification
ishment is
in the form of physical restraint facilita
or severe
the availability of market
limitation of personalvalues for
liberty is precisely such dama
a
goods; the small number ofpunishments
public good. These direct victims
are highly visible; en
that the full extent of the
the suffering imposed cost imposed
upon convicted offenders is ca
ascertained with a minimum of litigation.
easily recognized by the community as universally W
all the costs of the offender's activity
painful and the element of retribution can b
it represents
counted for in thisis way, the
payment "in kind" for achievement
moral costs incurred. o
Informational
efficient level of cost imposition problems still remain, for the sen-
is impeded on
the costs inherent in tencing authority must still tailor
organizing the punishment
cause of
prices to its own perception of the moral and
and bringing the suit."23
economic costsof
In general, the victims involved. But this institutional
crime do not ha
structure has fulfilled twofrom
right to direct compensation essential needs. the
It simul- cost i
ers.24 Instead, criminal entitlements
taneously creates an operational mechanism are
for pu
the exchange
placed, with the state rather of criminal entitlements
than and also
individu
bearers as the recipient of of
provides a measure the punishment
restitution at far less expense
Insofar as the cost than would be required required
information if all moral cost bearers
to est
efficient punishment
were prices impacts
given enforceable entitlements.26 upon th
tims of crime, it might at first seem natural t
B. INDIVIDUALIZED PRICING OF CRIMINAL
entitlements directly with the victims. This
ENTITLEMENTS: THE AMERICAN MODEL
provide the victim with an incentive to reve
extent of the injury, thus providing
The legal process is facedthe
with system
the task
accurate cost information. But the multiplic
nizing the efficient transfer of crimina
moral cost bearers created
ments. This by crimes
entails makes
two distinct problems. Ft
unsatisfactory solution
initial to informational
entitlement must be placed toprodis
in the criminal context. While
legal from illegal the aggregate
activity and second, a
cost of a given offense may
determination beand
of the economic substantial
moral costs
number of such costgenerated
bearers is generally
by a particular very
crime must be made so
and the individual cost borne
an efficient punishmentby each
price can relat
be established.
small. As a result, for most victims, the cost of In the American legal system, a two-part institu-
participating directly in the legal process by bring-tional structure has evolved to perform these two
ing suit to vindicate these moral entitlements tasks. The initial decisions on both the placement
would exceed the benefit to be realized as compen- of entitlements and their price are made by the
sation from offenders.25
As a result of this problem, compensation can 26 Note that this solution fails to deal with the often
more reliably be achieved by the state's provision large economic costs visited upon direct victims. The
of a single public good available to all, the con- perceived inequity associated with this failure has
sumption of which would provide moral benefitsprompted many jurisdictions to institute administrative
arrangements designed to ameliorate these costs. Gener-
ally, direct victims are given the opportunity to establish
the objective economic cost they have borne, and those
23 Certainly the costs associated with the price exaction
procedure itself and the institutional rules whichclaims approved by a compensation board are then paid
require
one party or the other to bear them are important by the state. In this way, the state acts as insurer of these
determinants of whether or not the costs imposed costs
byand,
a to the extent that this encourages potential
direct of
given act will in fact be internalized. The implications victims not to undertake those private precautions
the American rules regarding these costs in criminalto avoid the costs of crime which they would otherwise,
litigation are discussed in Adelstein, note 8 supra.an element of "moral hazard" is created. An interesting
24 Insofar as particular offenses are defined as contrast
torts as is observed in the French criminal process, which
allows direct victims to become third parties in criminal
well as crimes, some direct costs imposed by offenders
may in fact be compensable. But such claims must litigation
be itself at their own expense, entitled to introduce
pursued separately from criminal proceedings in theevidence
case, independently of the public prosecutor on the
and the costs involved in such actions make them a issues of both guilt and damages. Should the defendant
benot
practical rarity. Moreover, moral costs are in general convicted, he may face both a criminal punishment
compensable in civil actions. and an award of compensatory damages to the direct
victim. See Vouin, The Role of the Prosecutor in French
25 Analogous problems are faced in civil class action
suits. Criminal Trials, 18 AM. J. COMPr. L. 483 (1970).
288 RICHARD P ADELSTEIN [Vol. 70
legislature. This are cost free it isevery

occurs reached regardless of the initiala
time la
proscribing a placement of the entitlement.27
particular act However,
and if the
esta
punishment for entitlement
its is placed with Jefferson, to whom
commission. But it is th
judgment requiresworth more,
an no assessment
transaction took place. Thus for of
situation based upon an aex
situations involving ante
net social evalua
loss, a transaction
external effects of a crime.
is unnecessary, and transactionSince ever
costs are obviated
if the entitlement
unique, this ex ante judgment is placed with the
is costprone
bearer.
usually lacking in The legislature undergoes the same
specificity. The process when
role
determining whether an activity
cial process is to ameliorate should be crimin-
these prob
an initial legislative alized. Since there is a presumption that
decision, the vast ju
the
modify both the majorityinitial of victims place a higher total value of
placement on e
and the determination of cost. their entitlement, a crime results in a net social
For cost-imposing activity deemed illegal, loss.
the Therefore, the cost efficient solution is to place
entitlements are placed in the state, which the
canentitlements with the cost bearers, i.e., the
victims, since this limits the number of transactions
exact a punishment price from violators. In con-
and
trast, for lawful activity, entitlements are placed in any attendant costs. In principle, then, only in
the rare case where a criminal places a higher value
the cost imposers, forcing those who suffer the cost
to bear the costs or remove the burden by pur- on the entitlement than does the entire set of
chasing the entitlement. The determination that victims, direct and indirect, will a transaction take
an activity is a crime is a decision that in the place.
majority of cases a particular transaction results The
in legislature's role in the assignment of enti-
tlements is to determine whether there is a pre-
a net social loss. As a result of the high transaction
sumption
costs, it is most efficient to place the entitlement in of net social gain or loss. But thejudiciary
the victim. also plays a role in the placement of entitlements.
The determination of transaction costs and the The presumption of illegality in cases of net social
cost may be overcome by costs involved in the
determination of social gain or loss is the same for
civil and criminal entitlements. An examination of process of price exaction itself (the cost of punishing
criminals). The identification, apprehension, con-
the process in the civil context will facilitate an
understanding of how it operates in the criminalviction, and punishment of offenders clearly entails
context. substantial economic cost and moral costs may
Hypothesize two adjoining landowners, result asHamil-
well whenever price exaction procedures
ton and Jefferson. Hamilton has discovered are perceivedthat
by the citizenry as "unfair" or "im-
his land is uniquely suited for opening proper." These moral costs are incurred, for in-
a business
of catering noisy parties. As a result of stance,
this when rights of a defendant embodied in the
discov-
ery, Hamilton's land has risen in value,Constitution
but Jeffer- or widely shared communal values
are endangered
son's land is now worth less. Suppose, for example, or when inadequate safeguards
that prior to opening the catering business,
exist to protectthe
against false arrest or conviction.
Where the
value of Hamilton's land to him was $1,000 sum of these costs exceeds the net social
while
cost of the the
Jefferson values his land at $1,200. Without activity, efficiency requires either that
the
catering business, the total value of the activity be made legal or that laws against it
properties
be leftonly
is $2,200. If the catering business produces unenforced,
a a decision often made by the
$200 gain for Hamilton while causingactorsa $500within
lossthe judicial process itself ex post.
to Jefferson, the result of opening the Examples of this phenomenon are seen in the
business
would be a net social loss of $300 since the total sporadic enforcement of traffic laws, petty misde-
values of the properties now would be $1,900. meanors,
If and marijuana laws.
Hamilton is given the entitlement, Jefferson will The second task imposed on the criminal justice
pay him at least $200, but less than $500,system to is to determine the price of these entitle-
ments. In a penal system where punishment is
prevent him from opening the business. If Jefferson
is given the entitlement, Hamilton will be unable
equated with the costs imposed by a criminal act,
to bid a transfer price sufficient to persuade Jeffer-
the price of entitlements will vary greatly in differ-
son to sell the entitlement since the cost of the ent situations. The information required to price
business exceeds its benefits.
The efficient result is "no business," and assum- 27 Coase, The Problem of Social Cost, 3 J. LAW & ECON. 1
(1960).
ing negotiations between Hamilton and Jefferson
1979] 7TIE PRICING OF CRIME 289
entitlements ex ante is thus beyond
fenses prior to their the legislature's
commission. An efficient
reach. The American response has
is one in which been toderived
the satisfaction divide
by
the information gathering burden
criminal exceeds thebetween
price he must the
pay. leg
By eq
islature and the courts.
ingThe legislature
punishment price with theproscribe
costs impose
broadly defined offenses andsociety
the crime, establishes the
discourages only outer
inefficient t
limits of punishment.fers The judiciary
of criminal has the
entitlements case
and provides
by-case duty to specify the from
stracting costs the and penalties
uncertainty exf
of conviction)
post, and thus individualize
efficientthe application
level of criminal activityof crim
in the aggre
inal sanctions in the least costly
But the way. The
highly individualized judiciary
nature of these
must consider such factors as budgetary
has motivated constraints
a two-stage approach to price e
on its officers and thetion
moral costs
in which specificof various
prices pro-
are defined prec
cedures in developing factfinding processes
by the judicial process and of
only upon completion o
modes of conviction, offense
suchinvolved.
as plea bargaining,
Implicit in such an appr
which elicit the requisite information
however, is an apparentat a relatively
informational paradox
low cost.28 in closely tailoring punishments to the pec
The key to the implementation
circumstances ofof eachthis
offensemandate
so as to encou
is the pervasive discretion
only vested in judicial
efficient transfers, officers
the courts simultane
to modify legislative standards
reduce the flowwhere they
of information believe
requisite to t
circumstances warrant. Police officers can focus decisions to the potential offenders who must m
their efforts on certain types of activities to the
them.
Consider a continuum of market structures de-
exclusion of others or enforce the law selectively
within offense categories. Prosecutors can finedframe
by the degree of homogeneity which charac-
charges as they see fit or elect not to pursue a given
terizes the good, here tortious or criminal entitle-
case at all.29 At trial, the jury may refuse to convict
ments, being traded. At one extreme is the case of
even where the facts show a clear violation of the perfect homogeneity; every act of a given type
law and, of course, the trial judge has wide latitude
committed by every offender imposes an identical
in fixing sentence upon conviction. This discretion,
cost upon the community. In this case, entitlements
moreover, plays an important informational role can in
be protected by the property rule and market
legal dynamics, for judicial action consistentlyforces
at can be relied upon to establish a single
variance with legislative standards is a clear signal
efficient equilibrium price for them. In this single
to legislators that their assessments of cost inparameter
var- (the price of a similar "product"), a
ious situations may be in error.a? potential offender can find all the information
needed to determine the efficiency of his contem-
II. ORGANIZATION FAILURE AND INSTITUTIONAL plated act. Rational behavior on his part will
RESPONSE IN THE CRIMINAL PROCESS suffice to ensure that only efficient transfers are
undertaken. But as the costs imposed by a given
A. INDIVIDUALIZED PRICING AND INFORMATIONAL act are allowed to vary with the circumstances
PARADOX surrounding it, problems of information impact-
edness cause the protection of entitlements to pass
A principal purpose of the institutional struc-
from property
tures discussed here is to enable the potential of-rule to liability rule. The single price
established in the polar case gives way to a multi-
fender to distinguish efficient from inefficient of-
tude of efficient entitlement prices, one for each of
the different levels of cost associated with the act.
2 American organizational arrangements and incen-
tive structures in this regard are discussed in detailMoreover,
in this fragmentation of the exchange en-
Adelstein, note 8 supra. vironment results in the quantum of price infor-
29 Compare the "legality principle" of European sys-
mation available to the offender being insufficient
tems, which compels the prosecution to pursue all cases
to effect only the efficient transfer of entitlements.
which come to its attention.
" Discretion may lead to error in cost estimation Decisions
at at the margin require potential offenders
to have more information about their place in the
the judicial stage as well. Where the error is understate-
ment, concern over "leniency" in sentencing mayfragmented
be environment which has produced the
voiced. A complicating factor, however, is the availability
multiplicity of prices than is contained in the set of
of post-conviction penal facilities; where such facilities
prices themselves. They must know which of these
are inadequate or overcrowded it may be impossible to
prices will be exacted from them should they com-
impose the appropriate punishment price upon many
offenders. mit the act in question, and their ability to ascer-
tain this extra bit of information diminishes as the But the problem of gathering information suffi-
costs imposed by the act become more specificcient to for the ex ante specification of these uniform
individual circumstances and the number of pos- punishment prices is a most formidable one. First,
legislators must be able to predict the economic
sible punishment prices associated with it increases.
The final result is that a potential criminal mayand be moral cost which would be imposed by each
precluded from committing an efficient crime potential offender in a given offense category. In
when it is impossible to determine the cost (the contrast, the two-stage procedure requires only the
potential sentence if caught). ex ante articulation of these costs in the single case
In the case of tortious entitlements, the economic
at bar. Further, the legislature must estimate the
nature of the costs imposed and the possibility marginal
of deterrent effect of increased punishment
ex ante market valuation mitigate this problem upon to every potential offender, information not
some degree. But the moral cost involved in crim- required at all for individualized sentencing.
inal activity exacerbates the difficulty, and in theWhere this information is available to the legis-
polar case of purely individual specific cost impo-lature, uniform penalty schedules and the general
sition, even full knowledge of the possible rangewithdrawal
of of discretion from judicial officers may
punishment prices fails to provide the potential promote efficient levels of criminal activity at sub-
offender with sufficient a priori information for stantially
his less economic cost than the two-stage
marginal decision. Thus, as the exchange environ- approach. In practice, the exchange environments
ment changes along the continuum in this direc- for which this institutional structure is best suited
can be characterized in two ways. Initially, the

tion, the "organizational failure" of the legal proc-
ess becomes ever more pronounced and its institu- social cost, particularly the moral cost, imposed by
tions less able to perform the function of encour- each offense within a given category must be
aging only efficient transfers of entitlements. roughly equal and within the scope of ex ante
estimation. These costs must thus be relatively
B. MANDATORY SENTENCING
insensitive to the peculiar circumstances of the
offense and the identities of the direct parties to it.
Two distinct organizational arrangements which
Secondly, criminal punishment must have a deter-
remove much of the sentencing discretion granted
rent effect upon potential offenders which is
judicial officers can be seen as institutional re-
sponses to this informational paradox, each best roughly equal for every individual within easily
defined classes of offenders. Generally, both these
suited to a different kind of exchange environment.
criteria seem more accurately to describe crimes
The first is legislative drafting of a schedule of
uniform, mandatory penalties for various offense against property, such as larceny and burglary,
categories. This is a form of systematic planning and "white collar" crimes, embezzlement or fraud,
which sharply reduces the economic cost of fixing as opposed to crimes against the person, such as
punishment prices, but one that entails a substan- assault, rape, or homicide. Offenders in these cases
are usually motivated by pecuniary gain and are
tial risk of inaccurate cost specification. Given the
often "professional" criminals, more likely to weigh
"infinite variety of cases and facets to each case""'31
it may be possible to produce an efficient market the risks of crime rationally. Moreover, the individ-
place with a system of mandatory sentencing. A ual characteristics of the criminals seem less likely
to be significant determinants of the moral cost
uniform price that represented a weighted average
of the costs imposed by each offenders' activity
would be exacted from all violators of a particular auh
law.32 - h~j
, Diamond
IgXj' shows that efficiency in x can also be
achieved by exacting a uniform punishment price p*
" McGautha v. California, 402 U.S. 183, 208 (1971). from all offenders, where
" This has recently been explained in economic terms
auh axj
by Diamond. Let xj be the number of offenses of type x -CC
auh P* = axj ap
committed by individual j, so that < 0 is marginal C aX, 1
axj
ax j ap
cost to individual h # j ofj's activity in x and -is the ap Thus, p* represents a weighted average of the costs
marginal deterrent effect upon j of increments in the imposed by each offender's activity, the weights being
punishment price for x. While in general, an efficient the deterrent effects upon each offender of increments in
level of activity in x will result if punishment prices p. D)iamond, Consumption Externalities and Imperfect Corrective
are individualized across offenders such that pj = Pricing, 4 BELL J. ECON. 526 (1973).
associated with their acts, perhaps

for a codefendant justif
convicted of the same o
assumption of equalMcGautha
socialargued
cost on for statutor
appeal that a purely
tical offenses.
tionary procedure which could produce
But even in these cases, judicial officers often result was fundamentally lawless and depri
strongly resist legislative attempts to limit their of life without due process in violation o
charging and sentencing discretion in this way. fourteenth amendment.36
Where mandatory penalties are attached to crimes In response to this claim, the Court, sp
of general definition, the judicial mechanism through Justice Harlan, reviewed a history
adapts by an increase in plea bargaining as prose- tempts to impose capital sentencing sta
cutors reformulate charges against specific defend- upon the American criminal process which
ants to avoid the systemic sentencing mandates.33 reflects our earlier discussion of the two-s
Even greater difficulties would be presented by proach to the efficient pricing of criminal
attempting to treat crimes against the person, par- ments. Legislative efforts to "identify bef
ticularly violent crimes, within a mandatory sen- fact those homicides for which the slayer
tencing scheme. These crimes are often the product die,""'7 by incorporating specific penalties
of passion and circumstance and vary greatly from utes defining degrees of homicide were oft
case to case, elements which appear to require trated by the jury's exercise of the nullifi
individualized treatment at the judicial stage. power, i.e., the refusal to convict a defendan
capital offense in cases where they belie
C. SENTENCING STANDARDS AND THE DEATH
death penalty inappropriate. Rather than
PENALTY
refine further the definition of capital ho
legislatures
An alternate and more typical response instead met the nullification p
to the
by explicitly granting juries the discretion
informational paradox is legislative establishment
vidualize
of clearly defined sentencing standards the
to be capital sentencing procedure
ap-
plied ex post by the judicial processAin1968 decision concerning the composi
individual
capital
cases. This addresses the informational sentencing
paradox by juries discussed this pra
permitting
retaining a large amount of discretion an unguided jury, acting as a re
in judicial
of with
officers. In a series of recent decisions community
impor- standards, to individualize
tences. Thethe
tant ramifications for all criminal sentencing, opinion appears to recognize
U.S. Supreme Court has invalidated vantages of ex post individualized sentencin
mandatory
penalty schemes in capital sentencingsubtle and The
cases. shifting equation of punishme
Court imposed certain standards upon and costs
the imposed.
criminal
process to prevent a violation of the constitutional
[Juries] do little more-and must do nothing
guarantees against cruel and unusual punishments.
than express the conscience of the communit
The degree to which these opinions reflect the
the ultimate question of life or death .... [Ol
problems discussed herein is indeed striking.
the most important functions any jury can perf
In McGautha v. California,4 petitioner was found
in making such a selection is to maintain a link
guilty of murder and, in a separate trial proceeding
between contemporary community values and the
to fix the penalty, sentenced to die insystem-a
penal the gaslink without which the determi-
chamber by the same jury which had nation of punishment could hardly reflect "the
convicted
evolving standards
him. The purpose of the separate penalty proce- of decency that mark the prog-
dure was to provide the jury with as ress
muchof a maturing society."38
infor-
mation relevant to the sentencing decision as pos-
"6 In McGautha the Court also considered the claim
sible. While the jury was to be apprised
that capital"of the without separate guilt and pen-
sentencing
alty proceedings
circumstances surrounding the crime, of the was de- a denial of due process. While
recognizing the tension inherent in unitary proceedings
fendant's background and history, and of any facts
between a defendant's natural desire to present evidence
in aggravation or mitigation of the penalty,""3
in mitigation of a potential death sentence and the fifth
California law left the fixing of the sentence to the against self-incrimination, the
amendment protection
unguided discretion of the jury. Upon Courttheir
refused return
to find a constitutional basis for imposing
of sentences of death for him and life"bifurcated" trial procedures upon the states. See 402
imprisonment
U.S. at 210-17.
37 Id. at 197.
?' See NEWMAN, supra note 15, at 53-56, 112-14. " Witherspoon v. Illinois, 391 U.S. 510, 519 & n.1
34 402 U.S. 183 (1971). (1968). The inner quotation is from the opinion of Chi
" CAL. PENAL CODE ? 190.1 (1970). Justice Warren in Trop v. Dulles, 356 U.S. 86, 101 (1958
The McGautha Court was and

with the legislature, not unmoved
while it may delegate its
tioner's argument that
authority while
to enact the
or enforce policy grant
in specific cases
checked sentencing to administrative
discretion or judicial bodies,
in it must do so
capit
subject to controls
once served the purpose of onidentifying
discretion which prevent the th
defendant whose legislature
life would from abdicatingbe this basic decisionmak-
spared,
times its function ing
hadresponsibility.
become Included among
just acceptable
the con-op
juries have become trol mechanisms,
increasingly he maintained, are sentencing
loath
the death penaltyguidelines in any or standards
but which
thepermitmost
the clear
nary cases. But in failing
expression to but
of legislative policy impose
do not require
standards in these the circumstances,
sentencing authority to be insensitive legisl
to unfor-
plicitly created two seen groups
but important details.
of These guidelines would
murderers
should live and those who should die, without be subject to judicial review to prevent inconsistent
offering any basis, rational or otherwise, for distin-application or to prevent the use of impermissible
guishing one from the other. Whatever its originalfactors such as race or religion in decisionmaking.
purposes, the petitioner contended, such a sentenc- The constitutional vehicle for Justice Brennan's
ing mechanism had become constitutionally intol-analysis was the fourteenth amendment principle
erable as a means of selecting the unlucky fewthat legislative enactments cannot be so vague as
whose crimes deserve the ultimate sanction. In the
to permit their arbitrary application to specific
Court's view, however, the construction of anindividuals.
in- His formulation of this doctrine can
be substantially illuminated in terms of the infor-
telligible set of standards which would simultane-
mational paradox posed by individualized sentenc-
ously provide these ex ante distinctions but maintain
and encourage individualized sentencing based ing. Traditionally, the vagueness doctrine has been
held to require that a criminal statute must at least
upon thejury's proper consideration of"the infinite
give citizens fair notice of the precise conduct
variety of cases and facets to each case""'39 was quite
literally impossible,40 and the Court thus refusedwhich it forbids;43 that is, it must clearly define the
to hold that the fourteenth amendment mandated initial placement of criminal entitlements regard-
them. ing cost imposing behavior in various situations.
In a long and scholarly dissent, Justice Brennan But, as it has been demonstrated, merely establish-
found "sentencing procedures that are purposely ing the initial ownership of a given entitlement
constructed to allow the maximum possible varia- while leaving the specification of its individualized
tion from one case to the next, and provide no transfer price (or indeed whether any price will
mechanism to prevent that consciously maximized ultimately be attached to it) to the ex post operation
variation from reflecting merely random or arbi- of the judicial process creates severe informational
trary choice"41 to be inconsistent with the rule of problems for the potential offender seeking to effect
law itself and thus with the dictates of due process. an efficient transaction.
The suggestion that standards must be so precise Justice Brennan's view of the doctrine, based on
and mechanical as to remove all discretion from the Court's earlier holding in Giaccio v. Pennsylva-
the sentencing authority was, he argued, a misap-
nia,44 would speak to this further problem of notice
prehension. But the fourteenth amendment as does
well. In Giaccio, the Court overturned a Penn-
require that the state's choices regardingsylvania
penal statute whereby the state attempted to
policy be expressed clearly and be administered
mitigate the harshness of its common-law rule re-
through procedures which ensure substantial quiring
con- criminal defendants to pay the costs of
sistency and avoid the "government by whim"42prosecution in all cases by committing the matter
to thejury's discretion in cases where the defendant
forbidden by due process. Moreover, the primary
was acquitted.
responsibility for articulating such policy must be Thus, as in McGautha, the statute
implicity created two classes of unlawful conduct,
" 402 U.S. at 208. one in which the criminal statute itself would apply
40 "To identify before the fact those characteristics of
and a second in which the behavior of acquitted
criminal homicides and their perpetrators which call for defendants might still be deemed sufficiently re-
the death penalty, and to express these characteristics in
prehensible to justify the imposition of court costs.
language which can be fairly understood and applied by
the sentencing authority, appear to be tasks which areSignificantly, the Giaccio Court did not void the
beyond present human ability." Id. at 204.
41 Id. at 248. 43 See, e.g., Lanzetta v. New Jersey, 306 U.S. 451 (1939).
42 Id. at 250. 44 382 U.S. 399 (1966).
19791 THE PRICING OF CRIME 293
statute because it permittedsociety,
the and who are unpopular, but
punishment ofwhom society
is willing to
legally innocent defendants. Rather, itseestruck
suffer though
downit would not counte-
nance general application of the same penalty across
the act because "it is so vague and standardless
the board.
that it . . . leaves judges and jurors free to decide,
without any legally fixed standards, what is pro-
Yet even ostensibly neutral capital sentencing
hibited and what is not in each particular case."4"
procedures in the United States which grant un
In applying this view to the implicit classification
guided discretion to sentencing authorities in prac
scheme represented by standardless capital sen-
tice have produced precisely this result, and th
tencing, Justice Brennan suggests burden of that the legisla-
this discrimination has largely been
ture can constitutionally fragment the exchange
borne by the poor and the black.5' While concedin
environment by providing that differing punishment
it is logically possible for such selective pro-
prices in various circumstances. But if the legisla-
cedures to operate in a constitutionally neutra
ture wishes to do this and continue to induce
way, Justice Douglas contended that history ha
efficient criminal transactions, it must shownprovidetheirpo- application to be irreconcilable wit
tential offenders some further information regard-
the "desire for equality...reflected in the ban
ing their place in the fragmented environment.
against 'cruel and unusual punishments."'52 Thu
Articulated standards which preserve, subject to
the eighth amendment demands withdrawal of th
judicial review, some measure of sentencing discre-
discretion to discriminate and its replacement by
tion can, in his view, discharge this obligation.
clear, legislatively defined sentencing structure
The Court soon developed these themes in Fur-
overseen by the courts. As he explicitly recognized
man v. Georgia,46 a case in which it squarely
such an con-
approach is foreclosed to a Court "im-
fronted the constitutionality of the death penalty
prisoned in the McGautha holding.""3 Therefore, h
in the context of the eighth amendment prohibition
would use the eighth amendment rationale to over
of "cruel and unusual punishments." The turnCourt,
McGautha and instead adopt the procedure
however, was unable to find five members willing
outlined in Justice Brennan's dissent, in which h
to speak in a single voice on this general issue, and
had joined.
could muster only a bare majority in support of
While declining to interpret the eighth amend-
the narrow per curiam holding that the imposition
ment in this way, the two remaining members of
and execution of death sentences in the specific
the Furman majority also based their concurrences
cases under consideration in Furman violated the
upon the nature of the discretionary process which
eighth amendment.47 Each of the nine Justices
had produced these sentences. For Justice Stewart,
contributed a lengthy opinion regarding the gen-
the constitutionality of the death penalty per se
eral issue. Justices Brennan and Marshall each
would be at issue only if these cases were the result
argued that "evolving standards of decency"48 in
of a sentencing procedure which made death man-
American life had rendered the death penalty cruel
datory upon conviction for specifically defined of-
and unusual punishment under any circumstances.
fenses. But its imposition under discretionary pro-
The remaining three opinions in the per curiam
cedures which "capriciously [condemn a] random
majority, as well as Chief Justice Burger's dissent,
handful" such that "if any basis can be discerned
however, are of more interest to this discussion.
for the selection of these few sentenced to die, it is
Justice Douglas, arguing that "the idea of equal
the constitutionally impermissible basis of race"'
protection of the laws... is implicit in the ban
was, on
in his view, cruel and unusual.
'cruel and unusual' punishments,""49 read the Eng-
"' Id. at 245.
lish and American antecedents of the eighth
amendment to suggest that si "But the Leopolds and Loebs, the Harry Thaws, the
Dr. Sheppards and the Dr. Finchs of our society are never
executed, only those in the lower strata, only those who
it is "cruel and unusual" to apply the death pen-
are members of an unpopular minority or poor and
alty-or any other penalty-selectively to minori-
despised." Id. at 248 n.10.
ties whose numbers are few, who are outcasts of 52 Id. at 255.
~3 Id. at 248.
45 Id. at 402-03. ' Id. at 309-10 (Stewart, J., concurring). Justice Stew-
46 408 U.S. 238 (1972). art uneasily distinguished McGautha by noting that the
47 The separate petitions of three condemned black case had been decided solely on due process grounds and
men were heard in Furman. that the Court had explicitly refused in McGautha to
48 See note 38 supra. consider claims under the eighth amendment. Id. at 310
49 408 U.S. at 257 (Douglas, J., concurring). n.12. In dissent, Justice Powell responded that if the
To this, Justice White tained,
added a would
note which
eliminaterecalls
the e
the Brennan dissent in capital
McGautha. Where and
sentencing legisla-
thus
tures have authorized the death penalty
a backward step but
in left
penal its
pr
imposition to the standardless discretion
In the months of the
immediately
jury, he argued, legislative purpose
decision, will not
thirty-five be
states
frustrated even if the thorizing
penalty is thenever imposed.
imposition of t
"Legislative 'policy' is thus necessarily
procedures whichdefined
they notbelie
by what is legislatively authorized
Court's reading but ofbythe what
eight
juries and judges do inthese exercising
statutes[their discre-
were tested sim
tion]. In my judgment, of what was done
decisions in these
announced dur
cases violated the Eighth Amendment."55
1976,59 and while the Court
In a vigorous dissent, Chief Justice
to gather Burger
a firm spoke b
majority
directly to what he saw applicable
as the subto silentio
each of overrul-
the fiv
ing of the one-year-old a and
clearcarefully
and coherent considered
constit
McGautha decision. Burger issuedescribed
of capital jurors as refi-st
sentencing
ners of legislative intent with regard
mational to sentencing
problems within the
who are properly meticulouswork where
which the
theydeath pen-
addressed
alty is involved. Burger then challenged
islatures must meet Justice
"Furma
Douglas's assertion thatof capital juries
at least had acted
partially in
ameliora
a racially or socially biased way in
paradox the
"by past or that
replacing arbit
discretion
they would do so in the future. with he
Further, objective
argued,sta
eighth and fourteenth amendment
larize, and principles ought r
make rationally
not to be inappositely mixed in this way. Where it
for imposing a sentence of
can be shown that prima facie
time, constitutional
however, dis-
the individ
cretionary sentencing the procedures
criminalare being must
sanction em-
ployed discriminatorily or irresponsibly,
datory sentencing sufficient
procedur
doctrine regarding the equal protection clause
post sentencing ex-
discretion
ists to strike down thesefocus practices.
the jury's To Justices
objective con
ticularized circumstances
Stewart and White, concerned with of the
theindividual offense
extremely
rare imposition of the death penalty
and the individual offender inbefore
practice,
it can imposehe
a
sentence of
responded dryly that their death"'' will be struck
approach down.
"suggests that
capital punishment can be made
In Gregg to petitioner
v. Georgia,62 satisfy Eighth
challenged a bi-
Amendment values if itsfurcated
rate of imposition
procedure under which sentencesis some-
of death
how multiplied; it seemingly follows
had been imposed that
upon him for each of the flex-
two counts
ible sentencing system.., hasand
of murder yielded more
one of armed robbery. mercy
At the guilt
than the Eighth Amendment can
stage, Georgia law stand.""
required More
the defendant to be
directly, he questioned convicted
the propriety andif efficacy
of a lesser, noncapital offense any view
of the remedies to theofill they
the evidence hadtheidentified.
supported charge reduction. If As
McGautha had argued, sentencing standards
this initial proceeding resulted in a verdict ofof
guiltysub-
stance would be frustrated by the
to a capital charge, irrepressible
a separate penalty trial was
tendency of judicial officers tofurther
convened in which individualize
evidence regarding the the
criminal process; the prosecutor's charging
presence of factors aggravating discre-
or mitigating the
tion and the jury's power to nullify or convict of a
lesser offense could not be 5 The remaining dissenters,
denied."5 TheJusticesalternative
Blackmun, Pow-
ell, and Rehnquist, each amplified upon these themes,
to mandatory sentencing, while sharing this defect,
and further argued that, whatever their personal views
was even worse. Such as
arrangements, he
to the propriety of the death penalty per main-
se, such
determinations were more properly left in the legislative
McGautha Court had been prepared to find the death domain.
penalty unconstitutional on eighth amendment grounds, "9See Roberts v. Louisiana, 428 U.S. 325 (1976);
its approval of standardless capital sentencing would Woodson v. North Carolina, 428 U.S. 280 (1976); Jurek
have been a "singularly academic exercise." Id. at 427 v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428
(Powell, J., dissenting). U.S. 242 (1976); Gregg v. Georgia, 428 U.S. 153 (1976).
* Id. at 314 (White, J., concurring). 6 Woodson v. North Carolina, 428 U.S. at 303.
56 408 U.S. at 398 (Burger, C.J., dissenting). "' Jurek v. Texas, 428 U.S. at 274.
7 See text at note 33 supra. 62 428 U.S. 153 (1976).
offense could be placed by offers

legislature either side
the judiciary before
guidance th
as to those
sentencing judge or jury.
factors mostWhile
relevant tothe sentencin
the sentencing decision.
authority was free to consider any such circum
In summary, the concerns expressed in Furman that
stances not impermissible under law, it could not
the penalty of death not be imposed in an arbitrary
return a death sentence unless it specifically found
or capricious manner can be met by a carefully
the presence of at least one
drafted statuteofthat ten aggravating
ensures that the sentencing
factors clearly defined in the
authority Georgia
is given statute.
adequate information Fur
and guid-
thermore, it was not required to
ance. As a general impose
proposition, these the
concernsdeath
are
penalty in any case. Ifbest
itmetdid so,which
by a system however, the
provides for bifurcated
statute granted the defendant specially
proceeding at which the sentencing expedite
authority is
direct review by the Georgia Supreme
apprised of the information Court
relevant to the imposi- to
tion of sentence
determine the appropriateness ofand the
provided with standards to
penalty. Tha
court was bound to overturn the sentence if it guide its use of the information."
found (1) that the sentence was "imposed under

Thus McGautha, mortally wounded by Furman,
the influence of passion, prejudice, or any other
was dispatched by Justice Stewart's carefully cho-
arbitrary factor";63 (2) insufficient evidence to sup-
sen words in Gregg.69
port the finding of the statutory aggravating cir-
The petitioners argued that the retention of
cumstances; or (3) the death sentence excessive
prosecutorial discretion and the jury's power to
relative to penalties imposed in Georgia for like
return a conviction of a lesser offense even where
offenses under similar circumstances.i
a capital verdict could be supported produced an
The United States Supreme Court, by a vote of
intolerable potential for arbitrariness. The plural-
seven to two, upheld the constitutionality of this
ity responded that removal of this discretion would
closely circumscribed procedure. After first reject-
go far beyond the Furman requirement of principled
ing the claim that the death penalty per se consti-
sentencing and that the complete inability of the
tuted cruel and unusual punishment, Justice Stew-
judicial process to tailor punishments to "the par-
art, in a plurality opinion joined by Justices Powell
ticularized circumstances of the crime and the
and Stevens,65 characterized Furman as mandating
defendant" would produce a system "totally al
that discretionary capital sentencing procedures
to our notions of criminal justice."7 Moreov
not create a substantial risk that the death penalty
citing the Georgia Supreme Court's action in
will be imposed capriciously or arbitrarily. Toward
Gregg's own case, the plurality argued that t
this end, "justice generally requires.., that there
be taken into account the circumstances of offense
statute's judicial review provision provided an a
equate check against capricious or disproportion
together with the character and propensities sentences.'
of the
offender.'" Bifurcated trial proceedings are more
In Woodson v. North Carolina,7" the Court held th
likely to remove the deficiencies identified in Fur-
a statute imposing a mandatory capital sente
man because they use this information without
was impermissible since it did not allow indi
prejudicing the decision with respect to guilt.67
dualization of sentence. North Carolina had at-
Moreover, once the sentencing authority has this
tempted to satisfy Furman by replacing all sentenc-
information, society can ensure that it will be used
ing discretion in cases of "willful, deliberate and
as the basis of a fair and principled sentence if the
8 428 U.S. at 195.
69Justice Stewart noted the demise of McGautha: "In
SGA. CODE ANN. ? 27-2537(1) (Supp. 1975). view of Furman, McGautha can be viewed rationally as a
" In Gregg's case, the Georgia Supreme Court precedent
used only for the proposition that standardless jury
sentencing procedures were not employed in the cases
this third ground to void the death sentence on the armed
robbery count. there before the Court so as to violate the Due Process
6 A concurring opinion by Justice White, joined by Id. at 195-96 n.47. Under Furman and Gregg,
Clause."
Justice Rehnquist and Chief Justice Burger, adopted however,a such procedures are generally in violation of the
substantially similar rationale, and Justice Blackmun
eighth amendment.
70 428 U.S. at 199, 200 n.50.
joined in the result, citing only his dissent in Furman.
Justices Brennan and Marshall dissented in Gregg, reas-71 Essentially similar variants of the Georgia procedure
were upheld in the companion cases, Jurek v. Texas, 428
serting their belief that the death penalty per se violates
the eighth amendment. U.S. 262 (1976) and Proffitt v. Florida, 428 U.S. 242
66 428 U.S. at 189 (quoting Pennsylvania v. Ashe,(1976).
302
U.S. 51, 55 (1937)). 72 428 U.S. 280 (1976). A similar procedure was struck
67 See note 36 supra. down in Roberts v. Louisiana, 428 U.S. 325 (1976).
premeditated killing"73 paradox

with and its aorigins in the context of price
mandatory penalt
of death. But Justice exaction, Stewart, moreover, suggests
again a deeper understand-
speaking fo
himself and Justices Powell ing of the way in which
and institutional structures
Stevens,74 argue
that this approach merely have evolved over time in the criminalover"'7
"papered process. The th
problem of distinguishing precise mechanism
ex ante of thisthose
evolution ismurderer
certainly
who must die from those complex andwho not yet fully
are understood,
to be forspared
the
Echoing Justice Harlan's specific institutional
majority problems and alternatives
opinion in
McGautha, he noted that posed tosuch
appellate courts each result from the invite
a procedure slow
jury nullification and accretion
theof essentially
many marginal and interrelated
ad hoc deci- an
unprincipled sentencing sions made by the various
results which actors onaccompany
the judicial
it. Where "[t]he belief no stage. longer
But the analysis of these and other
prevails that casesevery
offense in a like legal category within the price exaction
callsframework7"
for an points to a
identica
punishment without clear role for appellate
regard to courts
the in this
past evolutionary
life an
habits of a particularprocess. Where necessary, they appear
offender,"'"76 theto respond
eighth
amendment cannot tolerate a statute which "treats to changing conditions in the exchange environ-
all persons convicted of a designated offense ment by identifying constantly shifting sources of
not as
uniquely individual human beings, but as mem- failure in the exchange mechanism, for example,
bers of a faceless, undifferentiated mass to be "evolving
sub- standards of decency" in the imposition
jected to the blind infliction of the penalty of penalties
of and an apparent historical trend to-
death."77 ward greater individualization in the perception of
This completed the Court's reversal of McGautha, costs emanating from criminal activity, and shap-
and in adopting sentencing procedures identical to ing institutional structures to meet them. While
those proposed by Justice Brennan's dissent in thatnot necessarily "optimal" forms, these evolved
case, it substantially mitigated the effect of the structures do permit the continued exchange of
informational paradox posed by purely individu- entitlements within the criminal process.
alized ex post sentencing.7" The specification of this
III. SOME OBSERVATIONS IN LIEU OF CONCLUSIONS
73 N.C. GEN. STAT. ?? 14-17 (Cum. Supp. 1975). The price exaction framework provides a natural
74 The plurality was joined this time by Justices Bren-
analytic context for the adaptive and evolutionary
nan and Marshall, with Justices White, Blackmun, Rehn-
quist, and Chief Justice Burger dissenting. Thus, the mental deficiency though such condition is insufficient to
three-member plurality would distinguish standardizedestablish the defense of insanity.
and mandatory capital sentencing procedures on consti- A plurality of four Justices (Burger, Stewart, Powell,
tutional grounds, while Justices Brennan and Marshall and Stevens), however, speaking through Chief Justice
would reject all forms of capital sentencing and the Burger, offered a solution quite consonant with the con-
Woodson dissenters would approve both post-Furmnan ap-cern for individualized sentencing expressed in Woodson.
proaches. Noting that "the concept of individualized sentencing in
7' 428 U.S. at 302. criminal cases generally, although not constitutionally
7 Id. at 296-97 (quoting Williams v. New York, 337 required, has long been accepted in this country," Id. at
U.S. 241, 247 (1949)). 602, the plurality stressed the irrevocability of the death
77 Id. at 304. sentence and concluded that, in general, sentencers in
7 The capital sentencing procedure established in capital cases must "not be precluded from considering as
Gregg and Woodson was refined by the Court's subsequent a mitigating factor, any aspect of a defendant's character or
consideration of an Ohio death penalty statute in Lockett record and any of the circumstances of the offense that
v. Ohio, 438 U.S. 586(1978). While the statute complied the defendant proffers as a basis for a sentence less than
with Gregg's mandate that specific aggravating circum- death." Id. at 604 (original emphasis). When the choice
stances which would support a sentence of death be is between life and death, theyargued, the risk of error is
clearly articulated, it sharply curtailed the sentencing too great to allow the Ohio procedure to stand.
authority's discretion to show mercy by limiting the It is worth noting that this portion of Chief Justice
consideration of mitigating factors to three specifically Burger's opinion was prefaced by the observation that
stated in the statute. Where aggravating factors exist, the the Court's recent holdings with respect to the death
statute permitted a sentence less than death only where penalty had generated much confusion, and that "[t]he
the defendant could show by a preponderance of evidence signals from this Court have not... always been easy to
that: (1) the victim of the offense induced or facilitated decipher." Id. at 602. That these holdings can be usefully
it, or (2) it is unlikely that the offense would have been rationalized in terms of the informational paradox is a
committed but for the fact that the offender was under demonstration of the analytical power of the price exac-
duress, coercion, or strong provocation, or (3) the offense tion model of the criminal process.
was primarily the product of the offender's psychosis 7orSee generally Adelstein, note 8 supra.
1979 THIE PRICING OF CRIME 297
nature of certain typesincluding many outside
of constitutional adjudica-th
tion within the criminal economic
process. scholarship as we
It also illuminate
evolved
an important set of positive forms
and which issues
normative attem
In a positive sense, the ual exchange when
interpretation human
of the crimi
tors is
nal process set forth here make this prohibitive
an economics which
suggests that what judgespoint in to
have turn
tellsuggests
economiststhe i
more important than what be termed the "institutiona
economists have to tel
judges. Our analysis has sition directs
shown that positive
a clear econo
eco
forces
nomic logic can be discerned inand
thefrictions
form of which
impor
individual transaction.
tant institutional structures inInsofar
the as much of the so-
legal process
These structures serve cial a
fabric
setcan beof
seen asevolutionary
woven to account not for pur
situations
poses in a clearly defined in which markets
system of economicwork perfectlyex- but
change with analytically rather wellfor thosespecified
in which they dotypes not becauseof
exchanges are blocked
problems. Epistemologically, then, by substantial
the constitucosts of con-
tracting,
tional litigation discussed here a greatanddeal canthe
be learned from the study
institutiona
structure resulting from of human it caninstitutions
be seenas responsesas to various
"positiv
evidence" in support of sourcesthe
of market failure.
price exaction mode
of the criminal processFrom ina normative
much perspective,
the same it is of interest
way to a
the existence of patentnote law thatstructures
the ostensibly equitable as nature of the
a respons
constitutional
to the public good aspects debate regarding the
of invention and deathknowl-
penalty
edge creation can be seencan beas understood
"positive in terms of this evolutionaryin
evidence"
support of the theory of process. But while this
public facet of the analysis initially
goods.s0
might be seen as ato
In this light, it is interesting rationale for systemic more
consider planning
in the
closely the structure of thecriminal
priceprocessexaction
and a means toward "ob-
frame-
work itself. Implicit in jective" resolution of important
the framework isnormative prob-
the posited
lems, a moment's reflection
existence of a set of entitlements which reveals that
mightit merely be
clarifies
seen as "intrinsic" in the the naturethat
sense of these issues
they and serves to pose
logically
exist prior to the legal them more directly. The
structures central roleevolved
which of moral cost t
define them precisely inand the definition of criminal offenses
to protect them and thefrom
pun-
ishment prices associated
uncompensated encroachment. with them, the
Moreover, the interrela-
mo-
tivating force driving tionship
this of law and procedure to which
evolutionary it contrib- is
process
utes, and
not the systemic objective oftheefficient
retributive aspects of a criminal al
resource
location directly, but process rather organized around the principle human
a postulated of price
propensity to exchange exaction underscoreentitlements
these the need for caution in this at th
margin and to organizeregard. It is a commonplace

structures of equilibrium theory
to facilitate thi
exchange in response to that changing
the particular terms of an efficient market
environmenta
conditions.81 In this context, allocation and the itprices
seemswhich motivate
natural it depend
t
perceive a variety of institutions not only upon individualand tastes and preferences,
organizations
but also upon the distribution of resources which
" Argument of this kind is not limited to legal struc-precede the exchange as well. This interrelation-
tures, as M. OLSON, THE LOGIC OF COLLECTIVE ACTION:
ship means that any claim that a particular effi-
PuBLIC GOODS AND THE THEORY OF GROUPS (1965) dem-
onstrates. A similar epistemological position characterizescient outcome is in some sense socially preferred or
the inquiry of Coase, The Nature of the Firm, 4 ECONOMICA"optimal" presupposes prior judgments about the
N.S. 386 (1937); Alchian & Demsetz, Production, Informationproprietyof the underlying income distribution
Costs, and Economic Organization, 62 AM.EcoN. REV. 777 and the legitimacy of satisfying only certain indi-
(1972); and WILLIAMSON, note 13 supra, into the nature of
business firms. vidual preferences through the exchange mecha-
81 The existence of a propensity towards mutuallynism. This implies that distributional problems
beneficial exchange at many levels of behavior is by nomust be articulated and resolved independently of
means an idea of recent scholarly vintage. For example,allocational issues. Insofar as class, income, social
see A. SMITH, THE WEALTH OF NATIONS 117 (A. Skinner
status, religious conviction, and simple bigotry all
ed. 1970): "[The division of labor] is a necessary, though
very slow and gradual consequence of a certain propen-
may be significant determinants of the moral cost
sity in human nature.., the propensity to truck, barter, associated with given activities of specific individ-
and exchange one thing for another." uals, it is clear that every scheme of retributive
justice is built upon and reinforces
efficiency a particular
component, but rat
scheme of distributive justice.
of the Tyranny may
underlying lawwell
itself
come disguised as efficiency. The ethical
price exaction. issues
Where of is
there
inal
the death penalty thus are process,
not the remedy
best posed by prob- mu
lems of criminal procedure,
ratherwhich have
than in the a clear
procedure

Adel Stein

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Adel Stein

Загружено:

Авторское право:

Доступные форматы

Informational Paradox and the Pricing of Crime: Capital Sentencing Standards in Economic

INTRODUCTION set of five decisions announced simultaneously in

acquisition and dissemination these exchanges. The of informational

unavailability of essential information. Where in-

Thus, for example,

example, a presidential assassin will probably pro-

nation of economic and moral costs preserves INNOCENCE

rangements, usually involving

upon this arrangement as a tomeans

legislature. This are cost free it isevery

can be characterized in two ways. Initially, the

associated with their acts, perhaps

The McGautha Court was and

offense could be placed by offers

found (1) that the sentence was "imposed under

premeditated killing"73 paradox

margin and to organizeregard. It is a commonplace

Вам также может понравиться