The rational actor and criminal justice

New Mexico criminal defense attorney Trace Rabern, one of the more interesting people I follow on Twitter, made a comment the other day that made me think.

Crim justice system set up on "rational actor" model--fails on every level with psychiatric disturbance.

The model, however, fails in almost all cases. The system of positive and negative incentivism that most of our penal codes follow assumes that we are all rational actors. In other words, the premise behind our criminal justice system is that we will all balance the benefits of a certain action with the potential costs of that action and that we will make our decision based on whether the behavior provides a net benefit or a net loss.

If the benefits of a certain act outweigh the costs, then we act in that manner. On the other hand, should the costs outweigh the benefit, then we do something else. Applied to the criminal law, if the benefit a person can obtain by committing a criminal act outweighs the possible consequences of getting caught, then our rational actor commits the criminal act. Conversely, if the consequences of getting caught in the act outweigh the potential benefit, a criminal act is averted.

Sound familiar? If you said neo-classical economic theory, you win a prize!

The problem with this rational actor model is that most of us act in the heat of the moment and focus only on the benefits of a particular action. We tend to ignore the possible consequences of our actions. Just look at the number of people buying candy bars and big gulps at the convenience store or how easily Bernie Madoff and Alan Stanford parted fools from their money.

In order to make a rational analysis before acting, one must look at the big picture. If you can step back and see where a particular action takes you (before you commit to it) then you can make a rational analysis of the situation and act in a way that maximizes the benefit to you. If, however, you are incapable of seeing beyond the end of your block, you will never be able to make a rational decision because you are incapable of estimating the consequences.

The rational actor model also fails to take into account the intoxicating effects of alcohol, drugs and sex have on our fellow man. Just take a look at your local newspaper's crime beat and see how many people killed someone they knew over a bet, a girl or a beer.

For further proof, look and see how many of our fellow citizens sitting behind bars are there for drug offenses.