CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, January 29, 2014

Utset on Inchoate Crimes and Behavioral Economics

Utset manualManuel A. Utset (Florida State University College of Law) has posted Inchoate Crimes Revisited: A Behavioral Economics Perspective (University of Richmond Law Review, Vol. 47, p. 1205, 2013) on SSRN. Here is the abstract:

This article develops a behavioral theory of inchoate offenses - criminal attempt, conspiracy, and solicitation. The theory helps explain why inchoate crimes exist and why they are punished less severely than the underlying offense. The article identifies an important aspect of criminal misconduct (including inchoate crimes) that has been overlooked by commentators: in making a cost-benefit analysis, an offender will take into account not just the net benefits from the crime, but also the value of the “real option” embedded in the decision. The real option derives from three characteristics of criminal misconduct. First, offenders make irreversible (or costly to reverse) decisions when they plan a crime - their investment in time, effort, and out of pocket expenses - and when they execute it - once criminal liability is triggered, it cannot be undone. Second, offenders face uncertainty regarding the returns from a crime, the likelihood of detection, and magnitude of the sanctions. Third, in most instances, offenders have flexibility regarding the timing of a crime. All other things being equal, the greater the uncertainty regarding a crime, the greater the value of the option to delay.

The article analyzes the nature of this real option, taking into account the complexity of a crime and the likelihood that the offender will commit the crime too soon or too late due to her uncertainty regarding her future willpower and the extent to which her preferences will change over time - time-inconsistent and projection-bias-induced misconduct, respectively. With this in mind, the article develops three arguments regarding inchoate crimes. First, inchoate crimes increase the overall complexity of planning, executing, and covering up a crime, and as a result they have a greater deterrence effect than what the standard account predicts. Second, inchoate crimes act as a commitment device to deter time-inconsistent misconduct. Third, they help prevent suboptimal, projection-bias-induced misconduct.

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