ONE standard approach to criminal punishment says that the state should set the penalties for criminal offenses to reflect the full costs that these wrongful acts impose on society. Setting optimal penalties in this way, however, raises an intellectual puzzle. Why would we expect to observe any crime if a system of optimal penalties were in place? If the penalty is correctly set so that a shoplifter internalizes the full social cost of stealing a product (at least its foregone price), why doesn't the shoplifter simply buy it? It seems hard to believe that the transaction costs of waiting in line and purchasing the good legally would ever be greater than the costs of stealing the item. Even the most casual shoplifting involves some costs of planning, some effort at avoiding detection, some attempt to avoid capture if discovered, and, of course, some expected legal costs if apprehended, tried, and convicted. Burglary undoubtedly involves even greater costs. On the other hand, murder in the presence of optimal penalties might not be so difficult to explain. For example, difficulties may arise because of state-dependent utility functions. It is possible to offer several explanations for the persistence of crime even when penalties are set at the optimal level. If individuals are risk takers, then the true value to them of stealing an item may be greater than the value of purchasing it legally. Alternatively, Posner has argued that the concern with accidentally imprisoning an innocent individual'
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