Punishing Vandalism Correctly in an Access Economy

Abstract

This Article argues that the social impact of vandalism must be factored into the expected criminal punishment for this offense. Existing law does so unevenly. Acts of vandalism may have a positive social impact, either as street art or as a form of protected speech, or a negative social impact as costs that preclude the provision of public goods or goods traded upon the basis of access, and not ownership. In general, vandalism cannot be prevented by means of observable security measures; rather, vandalism must be deterred by means of higher expected criminal punishment. A large expected punishment, however, implicates what this article terms the “broken community theory of punishment.” Although broken community effects militate in favor of relatively minimal punishment for vandalism, a negative consequence of this punitive approach is less investment in the infrastructure or physical appearance of urban communities. A number of urban communities may, in fact, benefit significantly from vandalism laws that allow for greater capital investment by more harshly punishing the deliberate damage or destruction of public goods or goods traded upon the basis of access, as vandalism in the first-degree.