Draft Evasion: $10,000, Smoking Marijuana: $25,000, Living in a Civil Society: Priceless

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Criminal penalties are not prices. Occasionally the idea surfaces that the schedule of penalties for felonies and misdemeanors is a price list. By implication, people are welcome to commit an offense if willing to pay the price (or, more exactly, to risk having to pay if caught and convicted). Steven Landsburg, an economics professor at the University of Rochester, expresses this idea in The Wall Street Journal of Feb. 11. “Speeding,” he writes, “is bad when the cost (measured by the threat you pose to other drivers) exceeds the benefit (measured by the size of the fine you’re willing to pay). At other times, speeding is good. If you’re willing to pay $500 to do 25 mph in a 20 mph zone, you ought to be speeding.”

Landsburg complains in particular about traffic fines scaled (as in Finland) to the offender’s income. I agree on this narrow point, as on the perversity of trying to scale the prices of ordinary goods and services to the buyer’s income. Furthermore, traffic offenses are a poor test of the notion of penalties as prices; for it is easy, even without bad intent, to overstay a parking limit or to creep above a speed limit, especially when everyone else is exceeding it and enforcement is lax.

But the penalties-as-prices principle is, in general, monumentally perverse. A free and prosperous society could not endure (although here is hardly the place to explain why not) unless most people regarded certain actions as downright wrong, morally wrong, along with even a readiness to calculate the personal benefits and probabilistic personal costs of committing them. Even obed~ehce to the law as such, apart from exceptional cases, is morally required; or so I could argue. Penalties scaled to the perceived seriousness of offenses do not thereby become prices that offenders are welcome to pay if they calculate that incurring them is personally worthwhile. Instead, scaled penalties remind people of the relative seriousness of crimes. Furthermore, they realistically take account of prosecutors’ and juries’ reluctance to convict offenders of crimes carrying disproportionate penalties.

The penalties-as-prices principle fits into the mindset of certain economists who regard success on “the market,” in a stretched sense of the word, as a test of desirability or excellence. But “the market” is no superhuman entity passing definitive judgments about good and bad, desirable and undesirable, right and wrong. The market is a metaphor for the myriad voluntary interactions of individual persons, who are responsible for their own behavior and whose very tastes are legitimately open to appraisal and criticism (though not to coercive suppression). The notion of “the market” as God, including the notion of penalties as prices” ignores and casts discredit on the quite different and valid case for a free society.

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