Why Exempt The Hard To Catch?

I often post on why we make some behaviors illegal, while leaving similar behaviors legal. For example, yesterday I posted on why low status jobs get work hour limits, and high status jobs don’t. When I post on such topics, many commenters suggest that the explanation is it is harder to enforce laws against the now-legal behaviors. So I thought it might be worth pointing out how little of our legal variance is explained by difficulty of enforcement.

First, note that we now tolerate huge variations in the ease of catching law violators, without exempting hard-to-catch cases. For example, sales tax must be paid not only when using a credit cared at a chain store, but also for cash purchases at flea markets. Income tax must be paid not only for full-time employees of big firms, but also when paying cash to a transient to do some yard work. It is just as illegal to shoplift a dress from Macy’s as it is to nap a trinket from some’s house you visit. Putting trash in the wrong recycling bin is against the rules even when there’s almost no chance of catching you. Rape can be quite hard to prove, yet few are sympathetic to legalizing rape in the situations where rapists are hardest to catch.

Second, note that it usually makes more sense to adapt to hard-to-catch cases by increasing punishments, rather than exempting them from punishment. They hung horse thieves in the old wild west not because horses were more valuable than other items whose theft didn’t induce a death penalty, but because it was much harder to catch horse thieves. Punishment is often reduced for criminals who turn themselves in, as that increase the chance of catching them.

Third, note that we often require changes to common behaviors to make it easier to catch law violators. For example, we require visible license plates on cars, and require publicly traded firms to keep careful accounting records. We do this even when such rules may prevent many related behaviors. So the fact that changes might be required to make it easier to catch violators of some proposed law hardly makes it obvious that we wouldn’t adopt such a law, or those changes.

For example, if we wanted we could limit the number of hours per week that students study for classes. Yes, that rule might be hard to enforce without other supporting changes. But we could require that studying only be done in approved study halls. Or we could increase the punishment for violations. Or we could just accept that the law would be evaded often. But it seems to me far more likely that we don’t actually want to limit student hours per week of study.

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  • justthinking

    It’s interesting that some of the drug legalization arguments are about the difficulty of stamping out the drug trade as arguing against our current regs. But your post would support the current punishments and up the ante further.

    I frankly don’t know where I stand on this issue but it does seem that the current drug laws lean more to the point you made in this post.

    • Michael Wengler

      There must be a lot of game theory in law and enforcement. They call it the war on drugs for some good reasons. To save us, they may have to destroy us. They certainly have made a good job of destroying significant parts of Columbia and Mexico, where drug producers and sellers have more power than the police, the army, and indeed all the branches of the government put together.

  • lemmy caution

    How would you know whether you were violating a limit on school work? You would have to implement a time tracking system. This would not be easy and would result in significant waste.

    There are plenty of laws that limit the compliance efforts required based on whether they would apply to individuals, small businesses, or large businesses.

    Here is the list of exemptions to overtime and minimum wage laws:


    The Act exempts some employees from its overtime pay and minimum wage provisions, and it also exempts certain employees from the overtime pay provisions only. Because the exemptions are narrowly defined, employers should check the exact terms and conditions for each by contacting their local Wage and Hour Division office.

    The following are examples of employees exempt from both the minimum wage and overtime pay requirements:

    Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals (as defined in the Department of Labor’s regulations) 1
    Employees of certain seasonal amusement or recreational establishments
    Employees of certain small newspapers and switchboard operators of small telephone companies
    Seamen employed on foreign vessels
    Employees engaged in fishing operations
    Employees engaged in newspaper delivery
    Farm workers employed on small farms (i.e., those that used less than 500 “man‑days” of farm labor in any calendar quarter of the preceding calendar year)
    Casual babysitters and persons employed as companions to the elderly or infirm

    The following are examples of employees exempt from the overtime pay requirements only:

    Certain commissioned employees of retail or service establishments
    Auto, truck, trailer, farm implement, boat, or aircraft salespersons employed by non‑manufacturing establishments primarily engaged in selling these items to ultimate purchasers
    Auto, truck, or farm implement parts‑clerks and mechanics employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers
    Railroad and air carrier employees, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans
    Announcers, news editors, and chief engineers of certain non‑metropolitan broadcasting stations
    Domestic service workers who reside in their employers’ residences
    Employees of motion picture theaters

    Certain employees may be partially exempt from the overtime pay requirements. These include:

    Employees engaged in certain operations on agricultural commodities and employees of certain bulk petroleum distributors
    Employees of hospitals and residential care establishments that have agreements with the employees that they will work 14‑day periods in lieu of 7‑day workweeks (if the employees are paid overtime premium pay within the requirements of the Act for all hours worked over eight in a day or 80 in the 14‑day work period, whichever is the greater number of overtime hours)
    Employees who lack a high school diploma, or who have not completed the eighth grade, who spend part of their workweeks in remedial reading or training in other basic skills that are not job specific. Employers may require such employees to engage in these activities up to 10 hours in a workweek. Employers must pay normal wages for the hours spent in such training but need not pay overtime premium pay for training hours

  • David

    How would you know whether you were violating a limit on school work? You would have to implement a time tracking system. This would not be easy and would result in significant waste.

    Frankly, I think this is something the vast majority of students would benefit from.

  • Earlier this year, to curb the “masochism,” the government began enforcing a 10 p.m.curfew on coaching-school activities, and in Seoul, a six-man team conducts nightly after-hours raids on classes that run late-night sessions behind shuttered windows. (Ironically, Time acknowledged, American educational reformers want U.S. students to study harder, like Asians do, but Asian reformers want their students to relax, like American students.)


  • I agree we should be careful before accepting “hard to enforce” explanations as solving all non-ban puzzles, but surely you agree that “hard to enforce” is a disincentive to creating some rules. It is embarrassing to make a rule that one cannot enforce.

  • The laws do exempt the hard to prosecute criminals. Maybe not explicitly, but if you have enough money to hire enough lawyers, you can get off of most any crime.

    I presume that is the reason that no one has been prosecuted for the financial meltdown. Why no one has been prosecuted for the fraud and perjury associated with the robo-signing of bank foreclosures. Why no one has been prosecuted for the Massey coal mine explosion. Why the US owners of foreign companies are not prosecuted for violating the Iranian embargo. And then there is tax fraud.

    I think your basic premise is wrong. The justice system does exempt the hard to prosecute criminals. That is why there are so few educated, wealthy white, white-collar criminals in prison and so many uneducated, poor, blacks.

    If you are really highly connected, you can even get pardoned.

    • KPres

      1. There were many prosecutions following the financial meltdown. Maybe you slept through the Bernie Madoff affair?
      2. Robo signing is not illegal, or even unethical.
      3. ….”Why the US owners of foreign companies are not prosecuted for violating the Iranian embargo”….

      WTH are you talking about?
      4. Plenty of people get prosecuted for tax fraud.

      • Kpres, Bernie Madoff had nothing to do with the financial meltdown. His Ponzi scam was independent of the meltdown and was chump-change compared to the derivatives markets. Madoff investors lost ~$18 billion. In 2007 there was $62 trillion of credit default swaps outstanding.

        Robo-signing of foreclosure documents is not illegal, provided the foreclosure documents are accurate. If they are not accurate, and the signature falsely attests that they are accurate, that is perjury and fraud. The use of robo-signing of hundreds or thousands of documents simply demonstrated that the accuracy of the documents was not verified before they were signed, as the signature attests to.

        Why lying in foreclosure documents is ok, but lying in loan documents is not ok, is an example of unequal enforcement. Rich banks can lie and get away with it, but poor foreclosed upon home owners can’t even get away with the truth.

        Why do Libertarians get all exercised about enforcing contracts and property rights for the wealthy and not for the poor? Because the Libertarian ethos isn’t really about enforcing property rights, it is about acquiring wealth, and externalizing costs and scamming poor people and working poor people to death is perfectly acceptable.

        The comment about Iran related to this.


        Kind of ironic that the funders of the Tea Party do business with Iran even when it is illegal. Even as the Tea Party darlings rattle the swords of war with Iran. Oh, but it is only “illegal” if you don’t have enough money to hire enough lawyers and enough judges to prove that it is “legal”. Which was exactly my point.

  • Preferred Anonymous

    Why shouldn’t we exempt the hard to catch?

    You mainly made the argument for reasonable crimes, i.e. those with conscionable impact, such as horse thieves, rapists, etc.

    But there’s also a class of crimes for which its simply ridiculous to prosecute, such as pins dropping, study time for students (as you mentioned), numbers of rice grains required per module, etc.

    Its not that we should exempt crime, so much as we should take the difficulty of deterring crime as a measure of the value of the crime, or the situation in which the crime is found in. Maybe that’s the answer to question posed in the title of your post.

    Take your examples. Horse thieves, were admittedly, difficult to catch. That doesn’t necessarily mean those people are any more evil than other bandits. That might simply mean that the notion of owning a horse is ridiculous, or that there are better means of securing horses to be found, such as cars, or RFID chips. In the absence of better methods, more severe punishments might help, but at the same time they could increase the attractiveness of a certain crime, since you now have a high notoriety crime which also happens to be profitable and very feasible.

    The same thing could be said of rape. Though for reasons of decency I decline to expound on some of the ways, I suspect the crime could be reduced without increasing punishments if a little more thought were put into preventative measures.

    If we can find ways of reducing or eliminating so called “hard-to-catch” crimes, then overall we can offer a better judiciary system. I don’t want horse thieves to be equated to the same or worse than rapists; the one does not do a terrible crime, the other does. And then the deterrents mean more (death for murder at one end, minor inconveniences for smaller crimes at the other).

  • Doc Merlin

    …because the goal isn’t to reduce the occurrence of the act.
    …the goal is to make it easier for certain individuals to extract rents.

    • KPres

      Didn’t even read it, did you?

  • Punishment for criminal acts is governed by at least two norms:

    1. The punishment should be proportionate the intrinsic evil of the crime; and

    2. the punishment should substantially deter the evil conduct.

    These norms are in tension because substantial deterrence might require going beyond proportionate punishment. When effective deterrence would require punishment so severe as to be disproportionate, it loses legitimacy. So, there will be crimes that aren’t considered crimes because they would be too hard to deter: punishing them effectively would require a “cruel and unusual punishment” relative to the crime (or would require surrender of too many other freedoms in lieu of severe punishment).

    Your explanation of the Old West’s laws imposing capital punishment on horse thieves is interesting in that, as you mention, people today are apt to think horse thievery must have been a heinous crime—like, look, you can’t leave someone stranded on the prairie, horseless. It seems we must invent some heinousness to justify it, just because the punishment exceeds our inclinations to accept the punishment’s reasonableness.(Presumably, disproportionality was accepted in the Old West because the circumstances were exigent–while individual life wasn’t necessarily threatened by horse thievery, this crime had to be suppressed if that kind of civilization was to survive.)

    With drug laws, it’s the other way round. The penalties would have to be much more severe to effectively deter it. The norm against futile laws comes into play, and there’s pressure building to get rid of the drug laws, at least for soft drugs, for which punishment is hardest to justify as in any way proportional.

    • I had always heard the saying “In Texas there are more men needin’ killing than horses needin’ stealing”.

  • ralph

    Dear Mr. Hanson,

    I am a first-time reader, but in the two “why do we…?” posts you don’t ever even mention that there is a large gap between “what were/are the arguments for” and “geez it’s damned weird making actual policy what with the human and group inefficiencies and all”.

    I read the bio, and I get that you like provoking and arguing. But these two posts were relatively thought-poor for me. I’d love to re-think which jobs — if any — should be hour-limited, and ponder the logical inconsistencies of actual punitive policy as opposed to the theories proffered for them at the time or now. But if you aren’t honest with the “basic” theories for how the current state of affairs arose, I can’t be bothered doing too much thinking here.

    There’s always plenty of “signaling” going on in the construction of such policies, no matter what they are; but that is a different thing from the reasons any political culture suggested them or supported them in the first place. Feel free to help us out better than this, really.

  • Lukas

    An alternative explanation for the difference between how we treat high-wage and low-wage workers is this: high-wage workers tend to enjoy their jobs, and work longer because they like it and because they extract high rewards from longer hours. Low-wage workers only work longer hours if necessary to avoid looking bad in comparison to other low-wage workers.

    So the payoff matrix for the two cases is different. The low-wage workers have a Prisoners’ Dilemma problem that can be solved by government intervention to prevent long hours; the high-wage workers have no such problem.

  • dWj

    In the case of income taxes, I think a lot of people believe the compliance rate is higher than experts believe it is. A lot of those people may comply because they believe it’s a social norm, even if they don’t believe they would likely be punished if they failed; the (de jure) penalty persuades compliance indirectly.

    I was thinking about this recently also in the context of a final exam I proctored last week, in which there were some visible but probably largely empty steps to prevent cheating. It occurred to me that this “security theater” would be effective even if everyone knew it was largely symbolic, as long as they’re influenced heavily by what they believe to be the norms, and this induces them to coordinate on a non-cheating equilibrium.

    • lemmy caution

      The compliance rate for income taxes is quite high. It is something like 85%.

  • Lindsey

    Regarding that specific example, the logic behind setting work hour limits for low status jobs but not high status ones could be because workers in low status jobs are easier to exploit, have less choices and therefore need more protection.

  • Veridical Driver

    Why should we exempt the hard to catch? Duh! Ever hear of cost-benefit analysis?

    You look at the costs (in money, opportunity cost, etc.) of enforcement of a hard-to-catch undesirable act (which will be significantly higher than an easy-to-catch act), and compare it to the costs of the problem itself.

    For a whole shitload of acts that people might consider “bad” or “wrong”, the monetary and social costs of enforcement would far outweigh the negative effects of the thing you want to prohibit.

  • John

    Explicitly exempting those criminals who are hardest to catch would mean effectively subsidizing the practice of coming up with better ways to evade and baffle the police. No government I am aware of has ever been stupid enough to create a perverse incentive of that magnitude.