In this Essay I first review the standard law-and-economics model of how rational potential criminals decide whether to commit a crime, and how rational criminals might be deterred from committing crime by raising the expected costs of crime. I also show how that model has had a deep impact on criminal-justice-system policy in the United States since at least 1980. I then express deep skepticism about the continued effectiveness of this model and its policy implications. First, I show how modern empirical research on deterrence argues that we have gone much too far in our use of incarceration; in brief, we incarcerate far too many criminals and for too long with no discernible social benefit and substantial social costs. Second, I cite evidence from behavioral law and economics to demonstrate that the rationality that the standard deterrence model assumes is highly unlikely to characterize the behavior of those who are committing crimes. Finally, I consider some recent developments in human genome studies to suggest that human behavior generally, and criminal behavior specifically, are likely to be far more complex than the standard deterrence model contemplates.

First Page