Public-order Crime - Why Criminalize?

Why Criminalize?

Criminalization is intended as a pre-emptive, harm-reduction device, using the threat of punishment as a deterrent to those proposing to engage in the behaviour causing harm. The state becomes involved because the costs of not criminalizing (i.e. allowing the harms to continue unabated) outweigh the costs of criminalizing it (i.e. restricting individual liberty and so minimising harm to others). The process of criminalization should be controlled by the state because:

1. Victims or witnesses of crimes might be deterred from taking any action if they fear retaliation. Even in policed societies, fear may inhibit reporting or co-operation in a trial.
2. The victims may only want compensation for the injuries suffered, while being indifferent to the more general need for deterrence: see Polinsky & Shavell (1997) on the fundamental divergence between the private and the social motivation for using the legal system.
3. Even if the victims recognize that they are victims, they may not have the resources to investigate and seek legal redress for the injuries suffered: the enforcers formally appointed by the state have the expertise and the resources.
4. Victims do not have economies of scale to administer a penal system, let alone collect any fines levied by a court (see Polinsky (1980) on the enforcement of fines). But Garoupa & Klerman (2002) warn that a rent-seeking government's primary motivation is to maximize revenue and so, if offenders have sufficient wealth, a rent-seeking government is more aggressive than a social-welfare-maximizing government in enforcing laws against minor crimes (usually with a fixed penalty such as parking and routine traffic violations), but more lax in enforcing laws against major crimes.