Crim

A few quick reactions to my criminal law class with Rubenfeld:

1. Should we use tougher deterrence for crimes harder to deter?

Rubenfeld raised the possibility that the difference in categorization and eventually in sentencing between 1st and 2nd degree murder is less than intuitive. 1st degree murder punishes cold-blooded killing that also has present intent to kill, premediation or deliberation with greater than 25 years of sentencing, sometimes up to life in prison or capital punishment. 2nd degree murder also has present intent to kill, but is usually acted under heat of passion, where one loses his cool and fails to calculate the effect of the deterrence. Rubenfeld suggests that since 2nd degree murder is harder to deter given the fact that during heat of passion, one's faculty to balance cost against benefit is compromised and one's likelihood to succumb to deterrence is lowerer. Therefore, it should only make sense to up the deterrence, to have a bite. Whereas when one is thinking clear-headed, to reach the same effect, you might only need to give a small dosage of detterence.

This is an interesting thought, but I thought the scope of his analysis seems to dewell on one particular incident, rather than the broad picture. If our goal is to minimize the number of killing in an environment where we are subject to limited resources (we always are), deterring one particular killing is no longer the goal. Resources should be allocated in a way where efficiency is achieved. Another way to state is that the last dollar should be spent where the benefit is just outweighed by the cost. (or you should save that last dollar too!)

The benefit in these cases is clearly lifes saved. The only way to solve the equation is to treat every life of equal values. In other words, saving a life, subject to danger of 1st degree murder is as valuable as saving a life subject to 2nd degree murder.

The cost is then sentencing. Putting someone in prison is not free. Quite the opposite, it could easily cost $30-50k a year! When you give the same sentencing to a guy commiting murder of 1st degree, you get a bigger bang for the buck because he can still think clearly and is still presumably fearful of losing his liberty and freedom.

Another way to look at the problem is that you can take the universe of all murders. Assign a value of the likelihood of deterrence to each case, 1 being the easiest and 10 being the most difficult to deter. Then you sort them low to high. When tough sentencing is invoked, you want to start from the easy ones because it is much more likely to work. This is interesting because we are not considering the benefit received from the cases that eventually happen, but the cases that are effectively deterred as a result of tough sentencing. Then you spend the last dollar (the last tough sentencing) on the one that is equally likely to be deterred as not getting deterred.

Does this suggest that those who are difficult to be deterred should not receive any deterrence? I do not think so - and the evidence is certainly against this hypothesis. The reason that they still receive some jail time is to still deter those whose faculty of thinking is not compromised. The ones that do receive jail time is merely paying the price for having deterrable ones in their group.

Clearly, for those that cannot be deterred at all, it is meangingless to incur cost for we may never reap the benefits of spending that cost.

2. Why is provocation important?

I do not have time now to finish this post, but will come back later. It largely has something to do with there are two ways to prevent killing - tell people 1. dont kill; 2. or alternatively, don't provoke. And if the goal is to minimize the number of killing, it becomes an impirical test to see which way works better. You in effect blame the provoker for the kill in order to provent provocation in the future.