This paper argues that the law should sometimes encourage offenders to incur costs in order to avoid punishment, or, at the least, should not discourage such efforts. Avoidance efforts, such as concealment of evidence, perjury, or obstruction of justice, are generally deemed socially undesirable because they waste real resources and reduce deterrence. However, since avoidance efforts are also costly to offenders, they may substitute for socially costlier punishments such as imprisonment. If the resulting savings in punishment costs outweigh the social harm associated with less deterrence or the additional enforcement costs required for maintaining the same level of deterrence, then avoidance efforts are socially desirable. This, however, does not imply that punishing avoidance or otherwise increasing its private costs or decreasing its productivity is socially undesirable. Rather, it suggests that such measures should discourage avoidance as little as possible or even encourage it. This way, the social costs of avoidance can be reduced while its social benefits are maintained. This paper also casts doubt on the argument that sanctions for the underlying offense should generally not be maximal if avoidance is present. It shows that this result holds only if fines are the sole form of punishment. Otherwise, if optimal punishment utilizes both fines and imprisonment, fines should be maximal. Similarly, if imprisonment is the sole form of punishment, it should be maximal as well. The latter result is another manifestation of the social desirability of encouraging avoidance efforts.
Law Enforcement and Corrections
Date of this Version
Avraham D. Tabbach, "THE SOCIAL DESIRABILITY OF PUNISHMENT AVOIDANCE" (February 2009). Tel Aviv University Law Faculty Papers. Working Paper 101.