The Social Desirability of Punishment Avoidance

This article argues that the law should sometimes encourage offenders to incur costs to avoid punishment. Avoidance, such as concealment of evidence, perjury, or obstruction of justice, is generally deemed socially undesirable because it wastes resources and reduces deterrence. However, since avoidance is also costly to offenders, it may substitute for socially costlier punishments such as imprisonment and therefore be socially desirable. This, however, does not imply that punishing avoidance is socially undesirable. Rather, punishing avoidance should discourage avoidance as little as possible or even encourage avoidance. This article also questions the argument that sanctions should generally not be maximal if avoidance is present. It shows that this argument holds only if punishment takes the sole form of fines. If punishment takes the sole form of imprisonment, then imprisonment should nevertheless be maximal. This is another manifestation of the social desirability of punishment avoidance. (JEL K14, K42) The Author 2009. Published by Oxford University Press on behalf of Yale University. All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org, Oxford University Press.