When I get to criminal law at the end of the semester, I ask my law & economics students, “why do mass shootings seem to be on the rise?” The recent horrific events in Buffalo, NY, and Uvalde, TX, raise that question again. The headlines were followed by the usual demands to “do something,” meaning enact more stringent gun control laws, which, of course, criminals will not obey.
The first answer to my question relies on what the literature calls marginal deterrence. Most scholars accept that the criminal law’s purpose is to deter criminal acts. (Adam Smith thought that statutes proscribing murder, rape, robbery, and other violent crimes enforced by the state, are meant to satisfy the victim’s and others’ sympathetic desires for vengeance.) The concept of marginal deterrence explains, for example, why repeat offenders often are punished more severely than first-time offenders and why penalties are imposed on people who attempt to commit crimes but fail to carry them out.
More to the point, the penalties for more serious crimes – measured by the sizes of the victim’s losses – must be stiffer if the law is to fulfill its deterrence function. That purpose is undermined for murder. Even if the crime occurs in one of the U.S. states still imposing the death penalty on convicted killers, that penalty cannot be made any harsher if the perpetrator murders multiple victims. Mass shootings carry the same maximum penalty as a single murder does. No marginal deterrence: the criminal’s expected cost of killing two or more people is the same as killing one human being, even if the victims are children.
The evidence on the deterrent effect of capital punishment is controversial (most studies report small but nevertheless statistically significant reductions in murder rates in capital-punishment jurisdictions). The controversy over the death penalty’s effects persists for many moral and economic reasons, one of which is that, because of the lengthy time between sentencing and execution, few murderers face immediate threats of death. According to retired federal judge Richard Posner’s most recent (and perhaps last) edition of his Economic Analysis of Law (2014, p. 265), “the likelihood of being executed conditional on committing murder … is less than 1 in 200”; only 2% of people on death row are executed every year.
Owing to the automatic and frequent appeals of death sentences, it turns out to be cheaper for the taxpayers for judges and juries to sentence a convicted killer to life in prison without the possibility of parole than to sentence him to death – “him” because few women who commit murder receive the death penalty. Even fewer of them are required to pay the ultimate price for their crimes.
Another reason mass shootings are apparently on the rise is that anyone aiming to kill multiple people seeks venues for the carnage in gun-free zones like grocery stores, schools, concerts, marathons, and even military bases where the shooter is less likely to confront armed resistance. Criminals, no matter how evil or deranged mentally they may be, are rational actors in the sense of selecting “soft” targets rather than “hard” ones. Unless bent on committing “suicide by police,” they know that it will take time for law enforcers to respond to reports of a shooting (for up to an hour in Uvalde), identify the shooter and his location, and then take him down, thereby providing opportunities for escape.
What is to be done? I’m an economist, ever grateful for not being a lawyer; I don’t want to debate the Constitution’s proscription of “cruel and unusual punishment.” One option consistent with the economist’s model of rational human behavior is to raise the penalty for convicted mass shooters, strengthening the law’s deterrent effect, making it more costly to kill multiple victims than to murder just one person.
This article was published by The Beacon
William F. Shughart II
William F. Shughart II is Research Director and Senior Fellow at The Independent Institute, the J. Fish Smith Professor in Public Choice in the Jon M. Huntsman School of Business at Utah State University, and past President of the Southern Economic Association. A former economist at the Federal Trade Commission, Professor Shughart received his Ph.D. in economics from Texas A & M University, and he has taught at George Mason University, Clemson University, University of Mississippi, and the University of Arizona.