OF SINNERS & SCAPEGOATS: THE ECONOMICS OF COLLECTIVE PUNISHMENT.

• Author: Dillbary, J. Shahar

ABSTRACT

"[I]t is better that ten guilty persons escape than that one innocent suffer." 4 WILLIAM BLACKSTONE, COMMENTARIES *358.

"[I]t is better that ten innocent men suffer than that one guilty man escape." Otto von Bismarck, Germany's first chancellor, quoted in John W. Wade, Uniform Comparative Fault Act, 14 FORUM 379, 385 (1979).

Punishing the innocent is considered an "error" that the legal system must minimize. In reality, it is a choice. When evidence points to one of a few suspects as the victim's assailant, society must decide whether to punish all, some, or none. Despite the stated distaste, in many cases lawmakers, regulators, and enforcers elect to sanction a large group of innocent actors. Mass arrests, sobriety checkpoints, profiling, even increasing the number of searches and seizures, and using excessive police force--are all forms of collective punishments. They allow the targeting and sanctioning of an entire population in the name of finding the culprit. The decision is often masked by confusing terms but its effect is the same. The freedoms of many are sacrificed to punish the one. These methods have been widely criticized, but what can economics say on the subject? Are these methods even effective? Under what conditions?

The standard economic model of crime has not offered a clear answer to these questions because it typically focuses on the apprehension and punishment of a single actor--the offender. It therefore does not consider the possibility of punishing a group of innocent actors as a policy tool.

This Article seeks to fill this gap. First, in deviation from previous models, it develops a realistic framework in which the enforcer can choose not only the probability of detection and the nature and severity of the punishment but also the size of the "punishment group." Our model then analyzes the welfare implications of collective punishment and the menu of choices available to enforcers and regulators. To be clear, our intention is not to argue for group punishment as an enforcement strategy. Rather, our goal is to explain the logic of collective liability regimes and unravel the way detection of offenders is currently carried out. Our analysis also shows that in many cases enforcers applying collective sanctions are motivated by self-interest and bigotry. Concerningly, even when the enforcer's goal is to enhance deterrence, the cost on members of the punishment group is discounted or ignored, resulting in a substantial loss of freedoms and welfare. The silver lining is that many of these concerns can be addressed by appropriate reforms.

TABLE OF CONTENTS I. THE PRIOR LITERATURE A. The Standard (BPS) Model of Crime B. Mistaken Convictions and Mistaken Acquittals C. Group Liability II. THE MODEL A. Motivation B. The Basic Setup C. Costless Punishment D. Costly Punishment E. Wrongful Punishment Is Costly F. Impact of Imposing Individual Punishment as Constraint III. THE LAW OF COLLECTIVE PUNISHMENTS A. Finding the Culprit: Separating the Wheat from the Chaff B. Investigatory Stops: High Crime Areas, Profiling, & Bigotry 1. High Crime Areas 2. Racial and Ethnic Profiling 3. Discriminatory Motive 4. Checkpoints & Random Enforcement 5. Identifying the Culprit C. Denmark's 2018 Ghetto Laws D. The Frankpledge and Riot Laws CONCLUSION INTRODUCTION

In 1999, a female student was brutally raped in Grand Rapids, Michigan. (1) DNA evidence pointed to identical twin brothers: Jerome and Tyrone Cooper. It was clear that one of them committed the heinous crime, but it was impossible to determine conclusively which one was the assailant. Both twins had prior records of sexual assault and both denied any involvement. (2) The strategy proved successful. Tyrone and Jerome are still walking free. (3) And they are not the only ones. (4)

Whodunnit twin cases may be rare, but the problem--separating the one wolf from the sheep--is not. Shaken baby cases provide another example. In these cases, it is often clear that either the father or mother abused the injured child. Despite the fact that the child remains in danger, criminal proceedings are unlikely to take place. As one prosecutor explained, "when you have a child who cannot testify and you cannot tell who caused the injury, we do not charge. We cannot." (5)

In other cases, prosecutors take the opposite stand. To target a single assailant, they indict a large group of actors. A recent example is the January 20, 2017 protests that erupted during President Trump's inauguration. (6) A group of more than 200 protestors--including innocent activists, members of the media, as well as medical and legal observers--was arrested for felony rioting and conspiracy. (7) In these so-called "J20" cases, prosecutors "argued for a far-reaching notion of liability." (8) They "sought to hold dozens of people criminally responsible for crimes--like smashing the windows of several storefronts--that only a handful of them had carried out." (9)

In the examples above, the dilemma is explicit. Prosecutors must decide whether to charge a group of actors for crimes committed by just one or a subset of its members. In other cases, the choice is more implicit. Screening, profiling, increasing the number of searches and seizures, and using excessive police force are all group punishment tools that allow the targeting and sanctioning of an entire population in the name of punishing the culprit. (10) In these cases the sanction is often informal. It does not take the traditional form of imprisonment or fines. Still, the sanction imposes a real cost on the innocents. It denies basic freedoms (as in the case of unjustified detainment, searches, and seizures), and imposes substantial physical, emotional, and pecuniary harms on those whose sole "crime" was being at the wrong place at the wrong time.

In the examples above, members of the group do not act in unison, nor do individuals aid, abet, or support the offender. In fact, they may not even know each other or that a crime has been committed. These individuals are subject to a collective punishment simply because they were in the wrong place at the wrong time or because the enforcer believes, based on some other indicators, that the true offender is one of them. In all of these cases the same questions arise: How far should society go to punish criminals? When a crime is committed by an unidentified member of a group, should criminal liability be imposed on all (as in the case of the rioters), none (as in the twin cases), or some (as with profiling)? As the examples illustrate, the question is by no means theoretical. Legislators, courts, prosecutors, and regulators face this dilemma often.

To date, the economic literature has failed to provide clear answers to these pressing questions. The standard economic model of crime, beginning with Becker, (11) focuses on apprehending and punishing a criminal by way of imposing individual liability. It theorizes that an actor will commit a crime so long as the expected benefits from committing that crime outweigh the expected costs therefrom. (12) This expected cost--or the "price" of committing a crime--can be denoted by ps, where p is the probability of apprehension and conviction, and s is the sanction (e.g., a fine or imprisonment). Importantly, innocent actors are never punished in Becker's model. "[O]nly convicted offenders are punished...." (13) Thus, in this model, "there are only Type I errors, i.e., the guilty criminal might escape," but there are no Type-II errors, i.e., there are no false convictions. (14) In other words, only the criminal may be caught and punished.

Others, like Polinsky and Shavell, have extended the model to include the possibility of false convictions. (15) But these models, with rare exceptions, have not even considered the possibility of sanctioning a group that clearly includes innocent actors in order to punish the culprit.

Surprisingly, only a few articles have analyzed collective liability as a policy tool. These articles extoll the ability of collective liability to encourage group members to monitor each other and thus ex ante deter actors from engaging in harmful behaviors and ex post extract information that would identify the culprit. (16) This scant literature is largely informal, relies on eclectic examples (mostly historical), and primarily focuses on civil sanctions. Moreover, this literature focuses on the benefits of collective liability but, with a few exceptions, ignores the cost and countereffects that come with holding innocent actors criminally liable. Importantly, most of this literature is merely descriptive. It therefore leaves open the most pressing questions regarding collective liability's utility in criminal law with respect to the most relevant choice variables: how many people should be subject to criminal liability, what should the collective sanction be, and how severe should it be? Consequently, the literature provides policy makers with little guidance as to the effects and roles of collective punishments.

This Article takes the first steps in filling this gap. To be clear, our intention is not to argue for group punishment as an enforcement strategy. The idea of group punishment would be considered contrary to any sensible approach to law enforcement, and indeed is seen as morally objectionable to many. (17) Rather, our goal is to demonstrate that understanding the effects of group punishment can shed light on the way that detection of offenders is actually carried out, as illuminated by the above examples.

To motivate our approach, we note that in a world of imperfect detection, criminals seek to avoid apprehension by "melting" into the crowd. The task of law enforcers is to narrow the set of suspects down, ideally to a single individual. (18) However, one can rarely be certain of that person's guilt, which is the reason for the various procedural safeguards of defendants' rights in criminal prosecutions. The...