For those whose understanding of criminal law lies in retributivism, intent serves an axiomatic role. In their view of the criminal justice system, there is a world of difference between a person who commits a harmful act innocently or even negligently, and one who does so purposefully. An indi- vidual who knowingly contravenes his community’s enacted laws violates the moral integrity of society and thus deserves to be penalised. Conversely, if somebody inadvertently carries out the same proscribed behaviour, the resolve underlying her actions comports with the social conscience. It follows that morality does not justify the latter person’s punishment.
If the law and economics account is correct, however, the purpose of criminal law is to create a price schedule for various crimes which results in an effi cient level of output in each relevant market. Hence, the economic account of crime (unlike the retributivist perspective) looks forward. The question of a person’s guilty mind, therefore, would only be relevant to a consequentialist view of criminal law if it potentially alters behaviour in light of the price imposed on proscribed conduct. If creating an optimal price schedule is indeed the goal, however, why does the law generally require that a defendant act with intent to commit the crime?
The answer cannot relate to the magnitude of the injury occasioned by an act that, but for the absence of intent, would have been a crime. A person’s good intentions do not diminish the injury that the victim suffers. Consider a traveller who accidentally takes another person’s suitcase at the airport. The person deprived of his belongings suffers an identical deprivation regardless of whether the taking was an honest mistake (and thus not criminal) or intentional (and hence larceny).
From the perspective of effi ciency, there is good ground to discourage accidental or negligent deprivations of property, as well as intentional ones. In punishing intentional or reckless behaviour, the law deters it. Failing comparably to sanction people who innocently commit otherwise identical acts, however, results in a zero market price for inadvertent harm. We might therefore expect too much innocent (i.e. non- deliberate) “crime”.
Understanding this problem implicates an important fact: just because a person acts without intent does not mean that she could not envision the harmful event. If an individual can discern ex
ante that his behaviour could produce an injurious result, and if he knows that the courts will
impose a price equal to any such injury, he will have an incentive to take cost- justifi ed precautions to prevent such harm’s occurring. That criminal law generally absolves anyone who acts with less than criminal negligence – defi ned as a gross deviation from the standard duty of care – means that it fails to generate the full panoply of effi cient incentives.
Simply because it does not punish as criminal those acts that lack the requisite mens rea , however, does not mean that the law fails to deter. In fact, when the law declines to condemn a harmful act as criminal due to the absence of intent, that act will nevertheless often be tortious. Part 2 explained how the tort system can induce potential injurers to adopt optimal precautions. The principal economic justifi cation for the intent requirement is that it reduces the threat of over- deterrence.
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From this perspective, not imposing criminal liability for negligent or innocent conduct, such as mistakenly taking another person’s umbrella from a restaurant, is desirable because the threat of criminal sanctions would induce ineffi cient reductions in the amount of legitimate conduct.
For that reason, tort may be a superior vehicle to hold people to account for the non- purposeful costs that their behaviour imposes on others. The reality is that being deemed a criminal carries a negative impact independent of the sentence imposed. For example, even if a person only receives a fi ne of £1, the fact that he is convicted and thereafter has a criminal record means that the disutility that he experiences is considerably greater than the £1 fi ne imposed. Conceivably, then, it may not be possible to fashion suffi ciently light punishments through the criminal justice system to instil appropriate incentives regarding unintended consequences.
The economic role of the intent requirement, then, may be to demarcate the boundaries within which tort and criminal law ought respectively to apply. What should we make, however, of strict liability crimes? These are offences for which the law requires no malicious intent. Some of them pertain to proscribed activities that society perceives to be less serious, such as regulatory infractions. The lack of any intent requirement for such acts fi ts with the explanation just provided, which posits that criminal convictions may over- deter because the stigma of criminality may result in a price that exceeds the social cost of the prohibited act. If the stigma associated with being convicted of a prosaic offence, such as double parking, is slight, imposing strict liability is effi cient when the actor is the lowest cost avoider.
One cannot justify all strict liability crimes in this manner, however, as some of them entail serious repercussions. The most prominent example is statutory rape. To understand the economics of this offence, one must fi rst discern the nature of the social harm that it creates.
At fi rst blush, the crime may appear to be consistent with the Coase Theorem in that it entails a consensual arrangement that does not aim to harm any third party. The crucial distinction, however, is that one party lacks the capacity to determine her own welfare. If a person’s revealed preferences confl ict with her well being, facilitating the satisfaction of those preferences may undermine her welfare. This line of reasoning bears dangers, of course, as paternalism could poten- tially justify any governmental deprivation of liberty. Yet, regardless of one’s general predilection for, or hostility toward, paternalistic intervention, it is hard to argue that minors have developed the requisite judgment to make potentially life- altering decisions in a manner that refl ects their long- term interests.
Thus, if the age of consent is a legitimate proxy for informed decision making, the prohibition on statutory rape makes sense. In light of what we have said above about the economic role of intent, however, does the absence of an intent requirement make sense? The answer is yes. As this crime is one that society would likely seek to eliminate entirely, the goal is to impose a price on the conduct that exceeds the private gains to the offender. The only obvious economic cost to not requiring culpable intent, as we saw, is the risk of over- deterrence. If the optimal output of the activity that the law is seeking to regulate is zero, however, then over- deterrence is no longer a problem. Instead, the risk becomes one of maintaining marginal deterrence. Nevertheless, as long as more serious penalties than those imposed in statutory rape cases remain available to the courts, this risk is unlikely to be material. Furthermore, as Part 3 on tort law explained, strict liability creates an incentive to substitute toward alternative forms of behaviour. This is, of course, desirable in the setting of statutory rape.
This section concludes by referencing extreme cases in which a defendant cannot formulate intent. A child below a certain age cannot offend. In England and Wales, for example, this age is 10. In Scotland it is eight, and in Ireland it is 12. One must be at least 11 to commit a federal crime in the United States. Similarly, the law never deems an insane person guilty of a crime. These features of the law are consistent with law and economics because the price elasticity of demand for insane actors and those who are too young to understand the nature and consequences of their actions may be close to zero. As imposing a price on such people would not materially affect behaviour, but
would nevertheless infl ict social cost, the effi cient result is no punishment at all. If an insane person is dangerous to the community, however, he may be locked up for the duration of his mental illness. If we are confi dent in the courts’ ability not to commit Type I errors in this setting (i.e. not acciden- tally to fi nd sane individuals incompetent) this, too, makes sense.