What is Criminalization?

  • Criminalization might be intended as a pre-emptive, harm-reduction device, using the threat of punishment as a deterrent to those proposing to engage in the behavior causing harm. The State becomes involved because they usually believe costs of not criminalizing (i.e. allowing the harms to continue unabated) outweigh the costs of criminalizing it (i.e. restricting individual liberty in order to minimize harm to others).
  • Criminalization may provide future harm reduction even after a crime, assuming those incarcerated for committing crimes are more likely to cause harm in the future.
  • Criminalization might be intended as a way to make potential criminals pay for their crimes. In this case, criminalization is a way to set the price that one must pay (to society) for certain actions that are considered detrimental to society as a whole. In this sense criminalization can be viewed as nothing more than State-sanctioned revenge.

The process of criminalization is controlled by the State because:

  • 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.
  • The victims may only want compensation for the injuries suffered, while being indifferent to a possible desire for deterrence on the fundamental divergence between the private and the social motivation for using the legal system.
  • 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.
  • Victims do not have economies of scale to administer a penal system, let alone collect any fines levied by a court. 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.
  • The victims may be incapacitated or dead as a result of the crime.

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