1) Punishments get scaled by the judged likelihood of guilt, i.e. judge says there’s a 65% chance Bill is the killer, Bill gets 65% of the punishment.
2) All punishments become monetary fines varying by judged negative utility, i.e. Judge says murdering Joe was worth x negative utilons, Bill is fined to outweigh damage done with good.
Potential problems/thoughts:
Bankruptcy?
Lower bound on fines/guilt likelihood?
Diminishing percieved utility of money/punishment in large amounts?
How to measure negative utility of crime, positive utility of fine?
How much should fine weigh compared to crime?
Some/all money to victims/government/charity?
Problems reaching accurate judgments?
Inequality of man measured in punishment cause some complex problem?
Lack of appearance of justice?
Other complex effects on society?
1) Punishments get scaled by the judged likelihood of guilt, i.e. judge says there’s a 65% chance Bill is the killer, Bill gets 65% of the punishment.
I think this would be very hard to make work as long as there remained a significant component of human judgment in determining probability of guilt. It seems much more likely that instead of working as intended, most of the time the people responsible would rationalize whatever probability of guilt would result in the level of punishment they wanted. You’d get very distorted probabilities out of this. Certainly we see that people do this from the historical cases mentioned in the article, when death sentences were required for many crimes, so juries adjusted accordingly.
“1) Punishments get scaled by the judged likelihood of guilt, i.e. judge says there’s a 65% chance Bill is the killer, Bill gets 65% of the punishment.”
Almost. There is a level of probability below which there is “reasonable doubt”. Let’s say that would be 70%. So if the probability of me being guilty is below that I go free. If the probability is above that I get the punishment in relation to the level that the probability is above it. So if my probability of being guilty is 80% I’d get 1⁄3 of the punishment.
It’s extremely important that the conditional probability of being punished, given innocence, is very low. Most people’s decision-making process “overweights”(*) the importance of small probabilities. For example, they prefer a sure $100 over a 0.95 chance of $110 and a 0.05 chance of -$10, even when by most measures their utility of money is essentially linear in this range.
The deterrent effect of the law, therefore, drops substantially if people start thinking “even if I commit no crime, I could very well be convicted anyway.” The psychological distance between expectations of punishment conditional on crime vs innocence can diminish by a lot, if the chance of punishment of the innocent rises just a little.
(*) Why the scare-quotes? By standard theories of utility, which I regard with some suspicion, it is wrong to weight possible outcomes non-linearly with their probability.
The deterrent effect of the law, therefore, drops substantially if people start thinking “even if I commit no crime, I could very well be convicted anyway.”
Rather tangential, but it seems to me that this could be highly relevant to a nasty spiral in certain marginalized groups that (probably correctly) perceive themselves as being unusually likely to be falsely convicted.
1) Punishments get scaled by the judged likelihood of guilt, i.e. judge says there’s a 65% chance Bill is the killer, Bill gets 65% of the punishment.
Interesting idea… of course, there would have to be some lower cutoff, else if I were judged to have committed a murder with 20% probability, I would have to serve 5 years.
There might be a place for these probabilities, but I suspect it would be in the appeals process or some such.
2) All punishments become monetary fines varying by judged negative utility, i.e. Judge says murdering Joe was worth x negative utilons, Bill is fined to outweigh damage done with good.
“Make the punishment really fit the crime,” in other words.
This could be conceived; however, “an eye for an eye” has a bad reputation in jurisprudence as a principle. I am personally of the opinion that the law should be there to (1) deter criminals, (2) provide an outlet for the vengefulness of victims and families, not to “put things right.”
Interesting idea… of course, there would have to be some lower cutoff, else if I were judged to have committed a murder with 20% probability, I would have to serve 5 years. There might be a place for these probabilities, but I suspect it would be in the appeals process or some such.
You (hypothetical person) are unnatractive, that raises the probability that you will commit murder or rape. You are hereby convicted and sentenced to p% of death.
Punishments get scaled by the judged likelihood of guilt, i.e. judge says there’s a 65% chance Bill is the killer, Bill gets 65% of the punishment.
For this to accommodate anything vaguely comparable to our current concept of “innocent until proven guilty,” it’d need to be something like the probability to the third or fourth power (or conceivably higher). If a hundred people were charged with murder and convicted under this standard, you’d be sending 35 innocent guys to jail for 20-40 years. If it were, say, 20%, you’d be sending 80 innocent guys to jail for about 8-10 years. Consider that currently someone is acquitted if the evidence is short of somewhere in the 95%+ range, this would lead to a vast, vast increase in the false positive amount, which is probably already somewhat high. It would, admittedly, also increase the rightfully convicted, but given our current laws, I’m not sure that’s an all-out plus.
Utility is too subjective and too easily an abused standard. Would you for example not punish almost at all if they kill an old homeless drunk with no friends if they do it painlessly enough? There seems to be an intuition that that’s not the correct response.
People who believe in property rights will also be concerned. Will this make it ok if I steal from you if I can show that the overall utility is increased based on my theft? You can make an argument that we shouldn’t do that because once that sort of attempt becomes common society will break down, so doing it repeatedly will result in negative utility overall. But in any given single instance this won’t be a problem.
Such a utility-based consideration would also lead to serious, serious problems if applied at the civil level. Businesses would basically do whatever they felt like, then hire an economist and some good lawyers to convince a trier of fact that whatever they did increased utility “on the whole.”
(1) the revealed preference of the judge for one party over the other party
and
(2) the judge performing a utility maximizing operation whereby he weighs the negative utility of one party against the positive utility of another party?
Why do we keep assuming that we can add and subtract interpersonal utility, as if we can measure them with the same “ruler”?
Fun crazy ideas that come to mind:
1) Punishments get scaled by the judged likelihood of guilt, i.e. judge says there’s a 65% chance Bill is the killer, Bill gets 65% of the punishment.
2) All punishments become monetary fines varying by judged negative utility, i.e. Judge says murdering Joe was worth x negative utilons, Bill is fined to outweigh damage done with good.
Potential problems/thoughts: Bankruptcy? Lower bound on fines/guilt likelihood? Diminishing percieved utility of money/punishment in large amounts? How to measure negative utility of crime, positive utility of fine? How much should fine weigh compared to crime? Some/all money to victims/government/charity? Problems reaching accurate judgments? Inequality of man measured in punishment cause some complex problem? Lack of appearance of justice? Other complex effects on society?
Add your own for upvotes.
I think this would be very hard to make work as long as there remained a significant component of human judgment in determining probability of guilt. It seems much more likely that instead of working as intended, most of the time the people responsible would rationalize whatever probability of guilt would result in the level of punishment they wanted. You’d get very distorted probabilities out of this. Certainly we see that people do this from the historical cases mentioned in the article, when death sentences were required for many crimes, so juries adjusted accordingly.
“1) Punishments get scaled by the judged likelihood of guilt, i.e. judge says there’s a 65% chance Bill is the killer, Bill gets 65% of the punishment.”
Almost. There is a level of probability below which there is “reasonable doubt”. Let’s say that would be 70%. So if the probability of me being guilty is below that I go free. If the probability is above that I get the punishment in relation to the level that the probability is above it. So if my probability of being guilty is 80% I’d get 1⁄3 of the punishment.
It’s extremely important that the conditional probability of being punished, given innocence, is very low. Most people’s decision-making process “overweights”(*) the importance of small probabilities. For example, they prefer a sure $100 over a 0.95 chance of $110 and a 0.05 chance of -$10, even when by most measures their utility of money is essentially linear in this range.
The deterrent effect of the law, therefore, drops substantially if people start thinking “even if I commit no crime, I could very well be convicted anyway.” The psychological distance between expectations of punishment conditional on crime vs innocence can diminish by a lot, if the chance of punishment of the innocent rises just a little.
(*) Why the scare-quotes? By standard theories of utility, which I regard with some suspicion, it is wrong to weight possible outcomes non-linearly with their probability.
Rather tangential, but it seems to me that this could be highly relevant to a nasty spiral in certain marginalized groups that (probably correctly) perceive themselves as being unusually likely to be falsely convicted.
Interesting idea… of course, there would have to be some lower cutoff, else if I were judged to have committed a murder with 20% probability, I would have to serve 5 years. There might be a place for these probabilities, but I suspect it would be in the appeals process or some such.
“Make the punishment really fit the crime,” in other words.
This could be conceived; however, “an eye for an eye” has a bad reputation in jurisprudence as a principle. I am personally of the opinion that the law should be there to (1) deter criminals, (2) provide an outlet for the vengefulness of victims and families, not to “put things right.”
You (hypothetical person) are unnatractive, that raises the probability that you will commit murder or rape. You are hereby convicted and sentenced to p% of death.
For this to accommodate anything vaguely comparable to our current concept of “innocent until proven guilty,” it’d need to be something like the probability to the third or fourth power (or conceivably higher). If a hundred people were charged with murder and convicted under this standard, you’d be sending 35 innocent guys to jail for 20-40 years. If it were, say, 20%, you’d be sending 80 innocent guys to jail for about 8-10 years. Consider that currently someone is acquitted if the evidence is short of somewhere in the 95%+ range, this would lead to a vast, vast increase in the false positive amount, which is probably already somewhat high. It would, admittedly, also increase the rightfully convicted, but given our current laws, I’m not sure that’s an all-out plus.
Utility is too subjective and too easily an abused standard. Would you for example not punish almost at all if they kill an old homeless drunk with no friends if they do it painlessly enough? There seems to be an intuition that that’s not the correct response.
People who believe in property rights will also be concerned. Will this make it ok if I steal from you if I can show that the overall utility is increased based on my theft? You can make an argument that we shouldn’t do that because once that sort of attempt becomes common society will break down, so doing it repeatedly will result in negative utility overall. But in any given single instance this won’t be a problem.
Such a utility-based consideration would also lead to serious, serious problems if applied at the civil level. Businesses would basically do whatever they felt like, then hire an economist and some good lawyers to convince a trier of fact that whatever they did increased utility “on the whole.”
Is there an operational difference between
(1) the revealed preference of the judge for one party over the other party
and
(2) the judge performing a utility maximizing operation whereby he weighs the negative utility of one party against the positive utility of another party?
Why do we keep assuming that we can add and subtract interpersonal utility, as if we can measure them with the same “ruler”?