Should the Cost of Investigation & Prosecution be Collected from Convicts ?

Economic Disincentives Can Strengthen The Deterrence Against Socio-economic Crimes

May be it is time we apply some principles of economics and psychology in dealing with crime and creating deterrence against it. As a first measure, we may need to shift the cost of investigation and prosecution on the criminals, and free the innocent citizens from it. This would amount to creating right incentives in dealing with criminal processes and strengthen the deterrence against crime.

Preventing crimes and protection of innocent citizens from mischievous offenders is one of the main duties of the State, as well as the primary justification for its monopolization of violence and an over-arching authority for making laws and regulation. The powers given to police forces and officials, including the power to arrest and detain, extra-ordinary position of judicial courts along with the power of contempt and elaborate laws and infrastructure devoted to the criminal justice system are all measures intended to prevent crime within the society.

Role of Deterrence in Preventing Crime

However, crime is best prevented by the deterrence of legal sanctions. The strict penalties provided in criminal law, like imprisonment are usually sufficient deterrence for law abiding citizens. However, they may not always be sufficient for hardened criminals who have adopted crime as a way of life after taking into account the risks of such penalty. In particular, such penalties have not kept pace with socio-economic crimes, which are becoming more common today, and hence may not be adequate.

Take the example of a person who repeatedly commits an economic offense with the knowledge that if he is caught, he can be imprisoned for up to 2 years. Even if he gets caught once and is punished, he would still retain the wealth earned for earlier crimes that remain unnoticed.

Once he is prepared to take the risk of a maximum punishment of 2 years, he may conclude that he is better off with taking this risk rather than not indulge in his criminal business, since even after spending 2 years in prison, he would still be able to enjoy a life that would be better than what he might have without his criminal business.

While the serious and violent crimes like murder seem to have stagnated in most modern societies, one can often see a rise in socio-economic offences in modern times, while we continue to follow the criminal systems created primarily for earlier times and societies. Insufficient deterrence may be one of the most important reasons for the rise of socio-economic crimes.

Citizens Pay the Economic Penalty of Criminal Misconduct of Offenders

As things stand, particularly in developing countries, it is the society consisting of innocent citizens that bears huge costs in investigating crime and then proving the guilt of the accused in a court of law. This cost is borne by the state, which in turn collects it from the citizens. Thus, innocent citizens who are not responsible for a crime get penalized for it. Not only that, once the convict is imprisoned, more cost has to be borne by the common man for keeping him within a prison, security and maintenance of the prison and taking care of these convicts.

With modernization of criminal systems, society has done away with cruel and inhuman punishments that were prevalent during the medieval times. The standard punishments today are imprisonment, which could be simple imprisonment or rigorous imprisonment. Maintaining prisons is a costly affair, in particular for the developing countries with large populations below the subsidence level poverty line. With most countries trying to emulate prison standards of developed countries, there is often a cruel mismatch, wherein convicted criminals enjoy a better quality of life compared to some for the more unfortunate innocent citizens that are unable to get two square meals a day.

Ironically, the poor innocent citizens who struggle to procure food, healthcare and education for themselves are made to finance the life of the convicts. On one hand, it reduces the deterrence of conviction and on the other, it ends up making a mockery of the whole system. Perhaps, it would not be out of place to ask whether such a system is fair and equitable, where citizens pay for maintaining the quality of life of convicts, while the state is unable to provide life saving primary healthcare for its poor children or take care of their serious malnutrition.

The Cost of Law and Order: A Public Good

Public provisioning of law and order by taxes paid by citizens has its own economic rationale that cannot be denied out rightly. Law and order is one of the most important public goods that the state or the government is supposed to provide for. Since it is not rivaled and difficult to exclude, it cannot be provided by the markets. Thus, to maintain law and order, we need a state and a government, which then needs to be financed, directly or indirectly, by the taxes paid by the citizens.

As a public good, it is expected that the cost of maintaining the law and order will be borne by the people at large. So, there is no real problem with law and order being financed from taxes paid by citizens. However, whenever there is a crime, there is a need to investigate it, find the guilty and bring him to task, in order to ensure that an appropriate deterrence level is maintained in the society against criminal activities. For this, the policing or the investigating agency may need to make significant efforts and spend a lot of resources. Where the criminals are smart and when they do not leave many clues at the scene of crime, the cost of investigation will be higher.

It is this cost that is imposed on the society only because of the criminal acts undertaken by a few, which should preferably be borne by such criminals only and not by the innocent law abiding citizens.

Need to Strengthen Deterrence against Crime

Another reason why the cost of investigation must be placed on the shoulders of the criminals and not the innocent citizens is to strengthen the deterrence against crime. As of now, since a criminal does not bear the cost of investigation, he has every reason to make it difficult for the investigating agency to establish his association with the crime. This means there are strong incentives for a criminal to not cooperate with the investigating agency and instead do everything within his capacity to obstruct and outwit them, legally or illegally.

However, in a scenario where the cost of investigation is placed on his shoulders, subject to his conviction, the smarter a criminal is in obstructing investigation, the heavier would be the cost that he may have to face on being finally convicted. This may not make much difference to those convicted with life imprisonment or death penalty. However, in most crimes of a lesser severity, and in particular, all economic offences, there would be an incentive for the criminal to facilitate the investigation. In some cases, a criminal may even find it preferable to surrender for his own sake. This will reduce the burden of investigation and prosecution on the society, and directly strengthen the law and order therein.

Is it Feasible ? Can it be done in real life?

While the idea looks reasonably attractive, at least on paper, the million dollar question would be whether it can actually be implemented. The main challenge may be to quantify the costs of investigation in monetary terms and differentiate between cost of maintaining law and order and cost of investigating a particular crime.

To begin with, easily implementable thumb rules can be developed to estimate the cost of investigation and prosecution that needs to be collected from the convict. It is unlikely to be an exact cost that may have been borne by the state agencies. Instead, it would be a kind of legal fiction, but that is largely the norm for almost charges that state imposes on the citizens. As the state agencies develop greater sophistication in such estimation, these recovered costs may get somewhat approximated with the actual costs.

It is certainly a though worth serious consideration, if we want to win our fight with the growing criminalization of society!