Swine Flu + Nightmare = Crazy Victims' Rights Idea

I am writing this at 4:25 a.m. on Friday and I’m a bit woozy. On Wednesday afternoon, my body seriously crashed. On very short notice, my beloved spouse got me in to see to see a physician, who told me I definitely had a bad flu and the only one going around was the swine flu.

The good news is that I’ve been recovering just as quickly as I crashed. By Thursday morning, my 101.3 fever had broken, and while I still have a cough, the aches and chills are now largely gone. My body just feels extraordinarily tired. I tried going to sleep Thursday night without any cold medications.

Sometime in the wee hours of Friday morning, I started to have an extended nightmare of bad guys breaking into my house and putting me and my family at risk. The nightmare was on a repeated loop where, over and over, I would try to change the horrific outcome. Each time I would look for different tools around the house that I could use to fend off the attack.

(Besides my illness, the nightmare may have been partly induced by the recent novels of Lee Child and Geraldine Brooks that I have been reading.)

But I’m writing about this unhappy vignette because of what happened next. As I was having this repeated nightmare, I became semi-conscious so that I could direct not just my own actions in the dream but even aspects of the context. At some point, I switched from thinking about my family to thinking about a nightmarish home invasion that happened last year a few doors down from my house. My (possibly impaired) memory is that three men broke into the home, tied up a house sitter, and beat her up while she was restrained — breaking bones in her hand with a baseball bat. They caught the bad guys. But I started wondering what happened to them.

The key moment was when I started asking what rights that house sitter should have with regard to their sentence. If I were she, I would be incensed if they were only sentenced to a year or two in jail. I felt she might say to the judge, “If the punishment is just a year in jail, I should be able to break your hands and not risk a longer sentence.” But then a thought came to me that something like the cake cutting rule — you cut/I choose — might be applied to the perpetrators themselves. To my mind, legal rights are a kind of option, so the search for optimal victim rights is a search for optimal options. And the cake cutting rule is one kind of option mechanism. It induces the first person to divide the cake evenly, because the second person has the option of taking either side of the cake.

How could that idea be applied to the house sitter problem? One way would be to give the perpetrators the option of enhancing their own punishment. If a prosecutor or a sentencing judge offered them a sentence of two years, the perpetrators would be given the option of increasing their own sentence to as long as they wanted. The victim would then have the right to treat the augmented sentence merely as a price and would have the option of doing the same thing to the perpetrators as long as she was willing to accept the same punishment. Regardless of what the victim chose, the perpetrators would still have to serve the augmented sentence.

Normally, we think that criminal defendants would only want to minimize the size of their sentence. But this crazy idea makes them the beneficiary of a longer sentence because it is more likely to deter their own victimization. In the terms of game theory, it gives them a countervailing incentive to avoid bargaining for a sentence that under-deters. I’ve played around with vaguely similar option ideas as a way to resolve civil disputes (here and here), but only because of the ravages of the flu did the criminal application occur to me.

Let me be clear: I do not endorse this victim rights idea. I am starting to crash (it’s now 5:15), but I can see serious problems with it. I don’t want to live in a world that gives victims these options and, if such an option were given to me, I hope in cool reflection that I would not exercise it. This deranged inspiration falls into the category of what my beloved spouse calls “just shut up now” ideas.

But I do endorse the thought process that gave rise to it. Indeed, there is a certain continuity to what I was doing while asleep. When I was inside the nightmare I was looking for tools at hand to fend off the attackers, and when I came to, I, in a sense, kept doing the same thing. I just started looking for legal and economic tools to protect potential victims. On net, I wish I could have avoided both the swine flu and the nightmare, but asking “why not?” in the quiet moments before dawn is a kind of self-medication that calms the racing mind.

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  1. Ken Arromdee says:

    This won’t work in practice even given the assumption that what you describe is desirable.

    Jail sentences are not equally harmful for all people. A jail sentence is a lot more harmful to an otherwise law-abiding citizen, who upon being sentenced to jail may lose his job (or get his resume blotted) and have to sell his house, lose his reputation, be unable to raise a family, be treated as a pariah by his friends, etc. (not to mention being less violent and therefore less likely to be treated well by other inmates, since prison hierarchy depends on violence). The criminal probably doesn’t have to worry about these, especially if he’s habitual, since most of them can’t be suffered twice (except for the prison violence).

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  2. JeremyN says:

    This is why economicsts are awesome people!

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  3. Brian says:

    Part of the very concept of justice by a third party is that the victim is satisfied with the punishment and no longer feels the need to seek retribution. When the victimized party seeks his own justice, the punished party will feel victimized, and a cycle begins. Bosnia and Iraq are good examples. True justice needs to exceed the break-even proposition of retribution, and it needs to be done by a third party authority.

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  4. MikeM says:

    Actually, you could clean it up a little and it might even be useful.

    The criminal can choose an augmented sentence in situations where the victim also may be in a position to bring a civil case. The victim could then choose to either: subject the criminal to the augmented punishment and waive a civil claim, or accept the original punishment and bring a civil claim. Is a form of justice like this already used in our justice system? Do we want to mix criminal and civil justice like this? I think that’s really the question your proposal raises.

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  5. JonA says:

    It’s like when two brothers are fighting. It’s best to have the parents break up the fight, or else the two brothers will keep trading blows. It would fall apart if the parent consulted one of the brothers on how to punish the other.

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  6. Rich Wilson says:

    So if the victim opts to add to the sentence by spending some time in jail, we have two extra people in jail for taxpayers to support. There’s a reason society decides the punishment, not the victim.

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  7. Matthew says:

    Dr. Ayres,

    What you’re describing is almost identical to talionic law, the system from which the concept of “an eye for an eye” originates. The idea was not, as is popularly believed, that if you were to poke out my eye, your eye would be poked out as well, but rather that the property rights to your eye would be assigned to me… at which point the bargaining would begin. If you could pay me an amount great enough that I would accept it rather than take your eye, then you could keep yours. It’s an elegant (if now considered barbaric) way of determining the true value of the loss suffered by the victim. I actually wrote a post about this a few years ago: http://www.thereconstruction.org/2006/02/21/medieval-iceland-must-have-had-some-economists/

    Best,
    Matthew

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  8. Eric M. Jones says:

    The victim deciding on the punishment is unreasonable. And I can’t believe we are talking about letting the victim whack the perp with a baseball bat. This is just so wrong. Perhaps the fever got to you a bit.

    When Michael Dukakis (who opposed capital punishment)was asked by reporter Bernard Shaw what he would do if someone raped and murdered his wife, he should have replied. “I certainly would want revenge. I would want to kill those who brutalized my loved one. But we live in a society where we seek justice under the law. As difficult as it often is, that is the right way to go.”

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