Blackmail Enforces Law

A year ago, I pushed private bounty-based law enforcement:

For each type of crime, we’d set a bounty amount to be paid to anyone who successfully convinced a court that a particular in-custody person had committed that sort of crime. We’d have to decide what investigative powers to grant bounty hunters, what regulations to impose on them, and what plea-bargains to allow. We’d also have to set rules on when to detain suspects, and how to prevent double jeopardy. (Options below.) We might want especially solid anti-trust regulations.

Since I’ve talked about blackmail lately, I should mention that legalizing blackmail would create an especially cheap and flexible system of private law enforcement. If an associate of a criminal discovered evidence of their crime, this associate could via blackmail extract close to the cash equivalent of the punishment to the criminal. While this might modestly lower the level of punishment of a caught criminal, it should greatly increase the probability of punishment, leading to more expected punishment of crime. And relative to public police, blackmailers should have much lower costs to investigate crime and implement punishment.

The main academic complaints (e.g., here, here) against blackmail as private enforcement of law are complaints against the very idea of private enforcement of law. It would be just terrible, they say, if criminals got punished without everyone being officially informed. Law enforcers in general face temptations to obtain evidence illegally, and to treat the rich and poor differently, and they face possible violent retaliation from criminals – and we all just know, they say, that public police better deal with these problems. Some also fear that adding private enforcement onto an optimal public enforcement would create too much deterrence, not realizing that one could compensate by reducing public penalties and enforcement.

One unmentioned possible cost of blackmail is a weakening of the bonds that tie people together. You’ll be less open to people who could blackmail you. This is a cost of all law enforcement – you will, for example, be less open with someone who could testify against you in court. For this reason (supposedly), the law today privileges certain relationships, such as spouses, doctors, clergy, reporters, and researchers, against having to testify in court. Reasoning similarly, one could prohibit blackmail within specific relationships.

But as such privileges make it harder to protect the rest of us from their law breaking, it seems to me that they should have to pay us to gain this privilege, unless it is clear that their relation produces more than enough compensating benefits to us. One way to pay would be by sharing some responsibility for their crimes.

The distortion that I’d worry about most is that blackmail as private law enforcement creates an added incentive to associate with potential criminals and ne’er-do-wells, in order to later blackmail them. The cost of this distortion probably doesn’t outweigh the benefits of much cheaper enforcement, however.

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  • Bob Knaus

    Blackmail would not work for a simple reason… the great majority of people in modern society do not like being blackmailers.

    Look inside yourself, Robin. Would you feel good about being a blackmailer? How about a paid informant? Or a shill at an auction? It is possible to construct economic justifications for all of these. People rationalize them, once they’ve done them… but their initial reaction is disgust.

  • Law enforcers in general face temptations to … treat the rich and poor differently…

    Interestingly, blackmailers have a greatly increased incentive to “enforce” laws broken by the rich. Most major laws are punishable by jail, and the monetary value of avoiding jail is going to strongly (probably even super-linearly) track wealth and income. If we assume that current laws are more likely enforced by the police when broken by the poor than the rich (since the poor are less able to shrewdly navigate the legal system, and have less money for lawyers, etc.), then this would seem to be an additional benefit.

  • Lord

    It would be just terrible, they say, if criminals got punished without everyone being officially informed.

    Absolutely. This is the reason for law, to make violations public so others may beware of them. Blackmailers just end up as co-conspirators, not preventing such crime but promoting it so they can prosper from it as well. And their excuse, “I didn’t do it, I just enabled it so I could continue to prosper from it.”

  • Vlad Tarko

    The legalization of blackmail can be critiqued from the perspective of retributive justice: With the obvious exception of victimless crimes, most illegal acts are considered bad because they harm some people. Blackmailing would allow some private individual who has not been harmed to cash in the compensation deserved by those who have been harmed. Thus, the blackmailer does two things wrong: 1. s/he keeps secret (as part of the deal) something that s/he should make public (in order for retributive justice to be done), and 2. s/he takes hold of the monetary value of the compensation that (more or less) should have been paid to others.

    As an unrelated point, note also that people can be blackmailed for doing legal but immoral acts. The social effect of legalizing blackmailing in this regard is not entirely predictable.

    • billswift

      And exactly how does retribution benefit those harmed by the crime? In a purely tortious system, where restitution was primary, that would be a reasonable objection. But the primary goal of retribution is to reduce the incidence of future crime, and the increased likelihood of being found out and “fined” will be more likely to do that. Note that every study I have seen has claimed that surety of punishment has greater deterrent effect than increases in severity of (less likely) punishment.

      • Vlad Tarko

        In a purely tortious system…

        That’s what I had in mind. If you believe we should move in that direction (I don’t actually hold such a view btw), legalizing blackmail sounds as a bad idea, because it pushes the system further away from that ideal.

        My point was that there are some other ideas of justice, such as the retributive view. People may reject the legalization of blackmail not because the disagree on factual grounds about the deterrent effects, but because they don’t see justice from the perspective of deterrence.

  • Psychohistorian

    What percentage of criminals do you think are judgement-proof? What additional level of crime would be promoted by hiring hitmen to kill blackmailers? Of sophisticated criminals, how many do you think have sufficiently skilled lawyers/ alibis to avoid liability even in light of someone ratting on them?

    The two big problems are that a lot of serious criminals will simply respond to this with force, and that most criminals couldn’t afford to pay off anything meaningful if they wanted to. Moreover, it’d be awfully problematic if multiple parties brought such blackmail claims.

    • Psychohistorian

      “But as such privileges make it harder to protect the rest of us from their law breaking, it seems to me that they should have to pay us to gain this privilege…”

      I’d add that this ignores that high trust generates positive externalities. If a jeweler can trust a wholesaler not to scam him, for example, much of those savings should go on to the customer. Thus, charging people for protection is likely to be inefficient; rather we should be subsidizing trust by doing exactly what we do.

      Your approval of private law enforcement ignores the fact that the purpose of law is not to punish people. Nor is it to punish guilty people. It is to punish guilty people AND avoid punishing innocent people. You also ignore the fact that a massive increase in enforcement rates would alter fundamental elements of the legal structure – would we have such high drunk driving penalties if 95% of DUIs got caught? Also, 95%+ of criminals plead out – how could private prosecutors plea bargain? Anyone under investigation would find a third party and strike a sweetheart deal with him. as soon as his prosecution was inevitable. Also, we want a lot of people to be allowed to slide or suffer minimal punishment for certain offenses. In short, your model is far too simplistic to provide much insight to this problem.

  • Michael Kirkland

    One of the problems with (traditional) blackmail is that the blackmailer can demand more than the victim has, and/or pressure them to continue or start criminal activity to satisfy their tormentor. This is exasperated by the fact that a blackmailer can never provably satisfy their side of the bargain; they can’t unknow what they’ve learned about their victim.

    How could we resolve this? We’d have to centralize the administration of blackmail fines with the local monopoly on force. Since the courts already have lots of infrastructure for dealing with these things, why not just use them? That resolves the double jeopardy issue if the authorities later find the crime themselves, or another blackmailer does. Putting it on the public record keeps another blackmailer from doing all the legwork for no reward.

    Put that way, we’re essentially describing Crime Stoppers.

  • The problem is there is no beneficent means for checking on the trustworthiness of the blackmailer.

    Either the blackmailer has a means of monitoring whether or not his victims (or plausible victims) report him to be trustworthy. If so then positive reports are untrustworthy since any additional attempt at blackmail will likely include a demand that they wrongfully claim the blackmailer was trustworthy. If not then victims will likely report the blackmailer to be untrustworthy out of simple desire to revenge. Even if some victim should refuse to pay their is still no means to tell if their allegations of untrustworthiness against the blackmailer are valid or merely a means of revenge.

    Thus in effect each person plays an independent game against the blackmailer with the choice to cooperate (pay) or defect (not pay) each round after the blackmailer chose an amount. The blackmailer would then have the choice of revealing (potentially anonymously) the info AND whether or not to play another round. If the blackmailed victim values not revealing the info at a fixed value $y independent of the round then if at round 0 it is a equilibrium strategy for the blackmailed to pay some $x then by symmetry it is also at every round n > 0. Thus the expectation for any strategy that pays at $x at round 0 is -infinity for the blackmailed party so the only equilibrium solution for the blackmailed party is to refuse to pay.

    But if it is irrational to pay the blackmail then your analysis has a serious hole.

  • Also one has the problem that certain kind of allegations (he molested me) are so inflamatory and hard to disprove that legal blackmail would encourage false blackmail against many individuals, especially those with so much money that paying is a small price against the risk.

  • Felix Benner

    I’m new to this blog, so I don’t know your pro-blackmail argument. My apologies if this has already been addressed.

    If signalling and hypocrisy are correct, almost everybody will commit minor misconducts that make them open to being blackmailed. If blackmail is legal, people will be pressured to submit their will to the blackmailer’s and might thus get on a slippery slope of bigger offences that make it impossible for them to regain control of their own life. I’m kind of terrified by that thought. I can very well see how I could miss that initial step and commit some offence to cover up some socially stigmatised behaviour only to find myself unable to get my life back. Making blackmail illegal could provide an alternative for someone who wants to quit. Without this exit strategy I fear people who are subject to blackmailing, which I guess will be a significant minority, will start to accept their fate out of cognitive dissonance and will even create a subculture around it. This will then increase hypocrisy and the willingness to commit crimes in the people who justify this by their feeling of not having a choice.

    Of course I have no experiments to confirm this. It’s just my layman’s understanding of human psychology which of course might be and probably is wrong. My point is that I don’t see how you can be so confident that legal blackmail would be beneficial overall.

  • Your intended target for blackmailers appears to be those who violate criminal laws. What about the myriad number of other regulations that affect our lives?

    Let me spend an hour or two at your place of business or your home, and I can just about guarantee that I can turn a tidy little profit when I turn you in for violating an impressive list of health, safety, building, environmental, zoning, revenue or other regulations.

    So many thousands of pages of rules, laws and regulations today that it is impossible for any of us to be fully aware of, much less in compliance of, all of them.

    • john

      Said unmanageable excess of regulations is a problem in itself. More rigorous enforcement would create entire demographics of people dedicated to solving that problem.

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