Liberal Democracies and Authoritarian Regimes: The Case for Law Enforcement. (Part 5 of 12)

Increase punishments or increase the application of the norm

As has already been pointed out on multiple occasions by various authors, when the utility maximizing agent makes the decision to transgress a norm or not to do so, the punishment provided by the norm is not represented (prison, fine, or indemnify a third party), but that multiplied by the probability of being effectively persecuted and convicted. As illustrated in the previous paragraph, a fine of $1,000 – whose probability of application is 80%, represents a risk equivalent to $800 – and the latter will have to be the magnitude to be taken into account by the agent. at the time of making your choice about complying with or transgressing the norm.

On the other hand, this too must be contextualized within a given political regime. Modern and liberal democracies have as a guiding principle to extend as much as possible the spheres of autonomy of the will of individuals and this includes leaving open the possibility that a given subject freely chooses to transgress the norm in exchange for receiving the punishment provided by it – But no more than that. The restriction of freedoms for the sake of preventing the commission of crimes is only allowed in cases in which the compromised legal interests are of the highest value, such as life, personal liberty or public safety. Outside of these cases, the only mechanism to prevent citizens and inhabitants from taking certain actions resides in the incentive system that imposes dissuasive penalties and compensation, preserving a wide margin of decision on the part of those on whether to comply with the norm or assume the cost. of the consequent punishment for the case of his transgression.

Therefore, if governments want to increase discouragement towards a certain type of behavior, they can either increase the penalty or increase the degree of application of the rule. To continue with the previous example: either the amount of the fine is increased or the probability of being fined is increased. Of course, the second option entails additional or marginal costs: greater resources must be allocated to the supervision and execution of penalties, fines and compensation. For this reason, in certain cases, it is more efficient to maintain the same level of application of the rules and increase the penalties.

In general, society already takes for granted that the prosecution of homicides, ravages, and other serious crimes require an investment of resources for which there is a wide margin of consensus, so the decision to increase the penalties or increasing the degree of law enforcement will have to be done paying attention almost exclusively to the results to be obtained. However, for cases of minor transgressions, such as traffic fines or mere contractual breaches of insignificant figures, a “self-financing” component of the punitive system itself comes into play: the fines are expected to finance in full or at least largely the monitoring system deployed in order to enforce the standard. The problem is further complicated when governments see in the fines and justice fees charged in order to make use of the judicial system a collection instrument to defray the expenses incurred by other areas of the state. In the latter case, regulatory compliance may conflict with the collection purpose that is awarded to fines and fees. For this reason, it is inadvisable for governments to see these instruments as a source of resources for expenses unrelated to the punitive system of fines itself.

[Editor’s note: this is Part 5 in a 12-part essay; you can read Part 4 here or read the essay in its entirety here.]

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