Alon Harel

Crime Rates and Expected Sanctions: The Economics of Deterrence Revisited

A higher expected sanction lowers the crime rate. This intuitive cornerstone of deterrence theory has garnered extensive theoretical and empirical research. The present study focuses on the opposite effects—the effects of the crime rate on the expected sanction. It turns out that these effects are versatile and rich in both the direction and the magnitude of their influence on the expected sanction. After analyzing these countereffects of the crime rate on the expected sanction, we present a new model of deterrence that explicitly incorporates the crime rate as one of the determinants of the expected sanction. The adjusted model is then used to study the effects of the crime rate on deterrence and on optimal law enforcement policy.

Criminal Law and Behavioral Law and Economics: Observations on the Neglected Role of Uncertainty in Deterring Crime

Criminal sanctions are usually public, stable and predictable. In contrast, the practices governing the determination of the probability of detection and conviction reinforce uncertainty. We invoke psychological insights to illustrate that criminals prefer a scheme in which the size of the sentence is uncertain while the probability of detection and conviction is certain. Consequently, the choice to increase certainty with respect to the size of the sentence and to decrease certainty with respect to the probability of detection and conviction can be justified on the grounds that such a scheme is disfavored by criminals and consequently has better deterrent effects.

The Economics of Stigma: Why More Detection of Crime May Result in Less Stigmatization

This paper establishes that there may be an inverse relation between the rate of detection and the deterrent effects of stigma. The more people are detected and stigmatized, the less deterrence there may be. This conclusion is based on a search model in which the costs of searching for law‐abiding partners increase with the rate of detection. The model distinguishes between willing stigmatizers, who refrain from business or social contacts with someone they believe has committed an offense (whether he is detected or not), and unwilling stigmatizers, whose main concern is not to be associated with the stigmatized yet are indifferent to whether that person has actually committed an offense. The inverse relation between the rate of detection and the deterrent effect of stigma is possible when the percentage of unwilling stigmatizers in the population is sufficiently high.

Social Norms, Self-Interest and Ambiguity of Legal Norms: An Experimental Analysis of the Rule vs. Standard Dilemma

The influence of social norms on the willingness to obey legal norms depends on contingencies that have not been investigated. Theoretical, behavioral, and experimental considerations investigated in this paper establish the differential behavioral effects of legal rules and standards. The findings of experiments conducted by us indicate that in the absence of information concerning social norms, rules and standards have similar effects on compliance. In contrast, rules and standards have differential effects on compliance when they interact with social norms. Furthermore, it was found that social norms of noncompliance had a much greater effect than social norms of compliance. A second study demonstrated a similar relationship between self-interest and legal ambiguity, corroborating the theoretical mechanisms we have argued for, based on the findings of the first study. The implications of these findings to legal policy-making are discussed.

WHY ONLY THE STATE MAY INFLICT CRIMINAL SANCTIONS: THE CASE AGAINST PRIVATELY INFLICTED SANCTIONS

Criminal sanctions are typically inflicted by the state. The central role of the state in determining the severity of these sanctions and inflicting them requires justification. One justification for state-inflicted sanctions is simply that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to inflict a just sanction on those who deserve it. Hence, in principle, the state could be replaced by other agents, for example, private individuals. This hypothesis has given rise to recent calls to reform the state’s criminal justice system by introducing privately inflicted sanctions, for example, shaming penalties, private prisons, or private probationary services. This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions. Privately inflicted sanctions sever the link between the state’s judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. When a private individual inflicts punishment, she acts on what she and not the state judges to be a justified response to a criminal act. Privately inflicted sanctions for violations of criminal laws are not grounded in the judgments of the appropriate agent, namely the state. It is impermissible on the part of the state to approve, encourage, or initiate the infliction of a sanction (for violating a state-issued prohibition) on an alleged wrongdoer on the basis of a private judgment. Such an approval grants undue weight to the private judgment of the individual who inflicts the sanction.

Why Only the State May Inflict Criminal Sanctions: On the Incoherence of Privately-Inflicted Criminal Sanctions

Some theorists argue that a complete understanding of criminal punishment presupposes a theory of state power. Since the state is uniquely assigned with the task of inflicting criminal sanctions, the mere fact that the criminal deserves to be punished cannot in itself justify the infliction of punishment by the state, as non-state agents could presumably give people their just deserts. One way of addressing the plea for a theory of state power would be to suggest that state-inflicted sanctions are justified simply on the grounds that the state is the most likely agent to determine accurately what just desert is and to inflict it on those who deserve it. Hence, the states role in inflicting criminal sanctions is contingent and, in principle, the state could be replaced by other agents, e.g., private individuals. This hypothesis has given rise to the recent calls for replacing the states criminal justice system with privately-inflicted sanctions, e.g., shaming penalties (instead of state-inflicted penalties). This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions in a way that renders the idea of replacing state-inflicted sanctions with privately inflicted sanctions not merely contingently undesirable. Privately inflicted sanctions sever the link between states judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. The individual who inflicts punishment acts on what she and not the state judge to be a sufficient basis for action. Consequently, privately inflicted sanctions ought to be classified as private infliction of sufferings rather than as criminal sanctions.

Gay Rights in Israel: A New Era?:

A recent Israeli case in which a steward sued El-Al (the Israeli Airline) in order to extend benefits to his same-sex partner was the first case in which the Israeli Supreme Court confronted the rights of sexual minorities. This confrontation was inevitable given the rapid legal changes in the legal status of sexual minorities in Israel. These changes include the decriminalization of male homosexual intercourse in 1988, the 1992 amendment of the Equal Employment Opportunity Act—a statute which, in its amended version, prohibits discrimination in employment on the basis of sexual orientation as well as less visible but equally important legal changes. This article explores the prospects of the legal protection of gays and lesbians in light of these developments. It describes the legal changes that have taken place in recent years—changes which strengthen the protection of sexual minorities. It analyzes the opinions in the Supreme Courts El-Al case and evaluates the potential for exploiting the decision to expand sexual minority rights. It also specifies the areas where further legal changes are needed and evaluates the prospects of whether such changes (both statutory and judicial) will indeed take place given the variety of constraints and pressures on Israeli judges as well as on the legislature.

Economic Analysis of Criminal Law: A Survey

Jeremy Bentham and Gary Becker established the tradition of analyzing criminal law in utilitarian and economic terms. This seminal book continues that tradition with specially commissioned, original papers that span the philosophical foundations of the use of economics in criminal law, both traditional economic perspectives and behavioral and experimental approaches to the discipline.

Whose Home Is It? Reflections on the Palestinians' Interest in Return

This paper investigates whether Palestinians have an interest in return rather than a mere interest in settling within the territory of a state that provides them with civil rights and economic opportunities. The paper establishes the following three claims. First, Palestinians have some interests in return to the territory of Palestine-Israel. Second, many of these interests can be satisfied (at least to some extent) by establishing an independent Palestinian state in part of historical Palestine. Third, some of these interests are similar to the interests that may justify an analogous right of return for Jews to the same land.

Benign segregation? A case study of the practice of gender separation in buses in the ultra-Orthodox community in Israel

Abstract The purpose of this article is to examine, from the perspective of moral and political theory, the practice of separate seating for men and women in buses operating in ultra-Orthodox neighborhoods in Israel. Its approach however differs from much of the discourse concerning multiculturalism. Instead of asking whether preserving cultural practices is a value that overrides the concerns for gender equality, this article suggests that the very characterisation of a practice of gender separation as discriminatory is culture-sensitive and cannot be detached from the political and moral convictions of the community that sustains the practice. This discussion raises questions that are analogous to the ones facing the South African jurist who wishes to reconcile respect for African cultural norms and practices with the provisions of equality and dignity entrenched in the South African Constitution.