I’ve been thinking about how to design a bounty system for enforcing criminal law. It is turning out to be a bit more complex than I’d anticipated, so I thought I’d try to open up this design process, by telling you of key design considerations, and inviting your suggestions.
I like the crime security insurance angle. You take out crime victim insurance with a firm, who presumably makes agreements with other similar firms, does reinsurance, etc... all that standard stuff. You comply with their standard policies regarding preventing crime. If you are victimized, they are responsible for paying you restitution, but in your contract you sign over the right to pursue the criminal.
Their incentive is to both deter criminals from preying on their customers and to collect from criminals what restitution is available to help make up their losses. They'd typically be a professional organization at investigating crimes, or else they'd subcontract with one, similar to how current art theft insurance, for example, works.
Applying that to the numbered concerns:1. The investigatory budget is supplied by the insurance payments and primarily recouped from the caught criminals.2. The insurance company doesn't have an incentive to let criminals off the hook.3. They're involved professionally, so average quality of investigation rises.4. They have an incentive to not spend more than is optimal on a particular criminal.5. Ditto cost-effectiveness, including in defensive anti-criminal technologies.
6. Single source for investigation authorization.7. Only one prosecution per victim.8-10. Not using many hunters.
A new tack: Many of these problems arise from the assumption that some governing body must pay bounties. The example given by 18th England suggests it suffices to make criminals responsible for payment of fines. As David Friedman notes in his analysis, this gives an incentive to go after richer rather than poorer defendants. But as that same example teachers, there remain ample incentives to prosecute even criminals that own nothing.
In that system...
1. The budget for prosecutions is provided in the first instance by criminals and secondarily by as a club good by parties joined in common defense.
2. We don't care if criminals buy off prosecutions. Indeed, the prospect of settlement is a large incentive to prosecute.
3. We can accept that prosecutors' luck shapes outcomes because we expect that the right to prosecute will be transferred in due course to the party most likely to succeed. Coase.
4. The system provides incentives for "hunters" (as well as the more general class of prosecutors) to adapt; see answer 3. The right to prosecute will be transferable.
In my version, the victim has a presumptive right to prosecute but others might. In fact, maybe it would be best to vest the right in the victim(s) or estate(s) and then allow prosecutors to assume the right by payment of a transfer fee to the victim.
5. This system provides incentives to innovate.
6. Nobody need worry about the first party on the scene of the crime messing up the evidence because that evidence would constitute a valuable asset. Why? Because prosecuting the criminal can lead to gain, and having that evidence makes prosecution more efficient.
7. Agreed that there should be a double jeopardy defense.
8. As we've discussed elsewhere, the problem of privacy-invading prosecutions might be solved by making prosecutors potentially liable for intrusions into the privacy of accused parties--on condition that the parties not settle or, if it goes to trial, the prosecutor wins.
9. Several hunters will not likely simultaneously pursue the same crime assuming adequate controls on double jeopardy. There will be an incentive to file suit first, balanced by the risk of not having adequate evidence to win or otherwise misjudging the case. Presumably, losers pay winners costs. See Ulex!
10. Prosecutors need not be given a special privilege to impose on witnesses. If they want testimony, they can persuade witnesses to give it by charm, moral suasion, or cash.
Of course, you might say to all this: I *want* a bounty system! But if you can take another step towards privatization, and add a few rules, your problems seem to greatly ease.
Rule 2 could reinforce a bar on over-prosecution, but it is not designed with that in mind. A "no double jeopardy" rule would presumably be enforced as a defense, raised by the accused. Prosecuting a case that will fail because it faces such a defense could constitute malpractice. Rule 2 would in that event allow the intervening party to take over the prosecution.
If you mean that the finding of malpractice would have to happen quickly in the event of an intervention, and would likely not: yes, that seems a problem.
Simpler and perhaps better might be simply adding the prospect of punitive damages to anybody who successfully prosecutes *another* prosecutor gone bad, as by conspiring with a fellow criminal to wrongly establish innocence and a chance to hide behind the rule against re-litigation.
The potential consequences of being found guilty of violations of criminal law are far more serious. Also, prosecutors and police are not supposed to have financial incentives to convict people whether they are guilty or not. One contemporary criticism of the Spanish Inquisition was that it funded itself entirely through seizing property taken from people that were found guilty; "if they don't prosecute, they don't eat."
I can see a number of potential unintended consequences here, and larger system effects that might throw a few monkey wrenches into it (or maybe a few dozen if I take time to think more about it). It would probably take me an afternoon to think through the incentives and use cases enough to really break it down; that's time I don't have right now, but here's a few thoughts about some potential deeper issues.
1. As you've noted, institutional investigators have a large number of powers that private investigators currently do not (gathering evidence, detaining witnesses and suspects, serving warrants, access to crime labs, etc.). Even with current institutional investigators, who have oversight, rules, and a number of other deterrents, abuse of these powers is common enough that we're all aware of multiple cases of them. Giving these same powers to private parties - some number of whom will have far less training than current investigators, and almost all of whom are likely to have less oversight - is a recipe for abuse. This is true even if these powers are limited to one investigator per case. Note that I'm not just talking about abuse of people actually connected to a crime, but abuse of people who have nothing to do with it.
Note: There might be ways to disincentivize this kind of abuse (other than just via penalties), such as requiring the investigator to pay a cost to use some of these powers. (Not saying that's an answer, just that there might be ways to try and address this).
2. Similar to #1, current institutional investigators also have far greater protections than normal citizens when performing their jobs. This includes things like training and equipment which might be replicable, but also includes things like a common understanding that interfering with or attacking a police officer is likely to carry much higher consequences.
I think it would be very hard to provide similar levels of protection to private investigators seeking a bounty. And without the same level of protection, the effectiveness of investigators, and attractiveness of the bounties, might be reduced.
3. In many cases, multiple crimes are performed by the same criminals. In the current institutional system, this is handled a number of ways, but ultimately means that often multiple similar crimes are consolidated under a single investigator (or investigative team). When there's a top-down approach to assigning these cases, there's incentive to do this consolidation (at least by the brass that assign the cases). However in a bounty system, the incentive of each investigator would be to *not* give their cases away to another investigator, especially if they've already done alot of work on it. Which means there would need to be a strong hand managing the investigators to handle these kinds of conflicts. (And I'll not that in a bounty system the only way to hire the right people to make these kinds of decisions would be to hire some of the private investigators with the appropriate experience into those positions).
4. Some investigations take a short time and few resources, and others take a long time and alot of resources, for almost identical crimes. With the current system investigators are paid a salary, so they have no financial incentive to pursue fast cases over slow cases, but they have career incentives to prioritize serious cases over trivial cases. This is good.
But with a bounty system, there would come a point at which the investigators would likely drop almost any case as not beneficial for their bottom line. This would likely even be true for heinous crimes, if the crime took a long time to investigate. So there's a good chance that the bounty system would incentivize the investigation and prosecution of small or trivial crimes (which means a steady, even if meager payday) over more serious crimes (big payday but you have to figure out how to pay the bills in the six months it takes you to do it), simply as a way for the investigators to make ends meet.
There's alot more I could hit on here regarding education and experience requirements for current officers/detectives, how officers currently move up the ranks to learn how to do things properly, and more. But I hope some of the above highlights some deeper potential issues that may help you think about it more.
Final Note: I'd feel more comfortable with the idea overall if there was something already implemented which was similar to it, so we could have some idea of the potential unintended consequences and non-obvious issues that might come up. Unfortunately the only thing I can think of is the bail bonds system, and I see very little similarity in that (it's far less complicated on many levels than a bounty investigation/prosecution system would be).
The standard civil law system of private lawsuits already has that issue, and courts are already practiced in being skeptical. Also, government police can similarly do such things, and courts are already practiced in skepticism re them.
Is this intended to support a no double jeopardy rule? If so, the party who might sue for malpractice needs to get evidence re that suit soon enough to be relevant. That might be hard.
Still thinking about this interesting problem. Herewith, two rules to cover many problematic cases:
1. Standing to Prosecute. Any person directly harmed by a criminal violation may bring suit to prosecute the offense, but if no such victim brings suit, anyone may prosecute the crime.
2. Intervention by Third Parties. Any party with standing to prosecute a violation of criminal law may intervene in its prosecution by another party sued for legal malpractice in the case. If that suit does not result in a finding of malpractice, the party attempting to intervene must compensate the earlier prosecutor for the legal costs of both actions. If it results in a finding of malpractice, the sued party shall receive no compensation for the costs of commencing the prosecution or proceeds resulting from its termination.
Together, these two rules give victims a presumptive right to control prosecution and anybody a right to intervene in wrongful prosecutions. The standard "sued for legal malpractice" in rule 2 requires the intervening party to go beyond mere talk. The other provisions of rule 2 discourage bogus malpractice claims and reward valid ones.
There is one more key concern that you didn't mention in your list.
11) We don't want to give hunters an incentive to frame innocent people in order to benefit from having gotten *someone* convicted.
(This is also a reason we don't usually pay firefighters per fire extinguished.)
The closer that bounties are to fines, the less of a problem it is. The bigger the desired difference, the more that private payments undermine that difference.
What is the problem with large payoffs by criminals to hunters? Aren't you pro-blackmail? :P
I think you are attacking the problem from the wrong end.
little OT. In the references of elephant in the brain is schopenhauers book "world as will" which adressess many same topics as your book elephant. Do you think that book is worth reading and does it describe human nature in so vivid way that it would be worth spending time with?
Close enough: Regarding torture of detainees.White House Cousel John Yoo wrote legal opinions, including co-writing the Torture Memo of August 1, 2002, that narrowly defined torture and American habeas corpus obligations. They authorized what were called enhanced interrogation techniques and were issued to the CIA. In addition, at the time the OLC issued a new definition of torture. Most actions that fall under the international definition did not fall within this new definition advocated by the U.S.
In addition, on March 14, 2003, Yoo wrote a legal opinion memo in response to the General Counsel of the Department of Defense, in which he concluded that torture not allowed by federal law could be used by interrogators in overseas areas. Yoo cited an 1873 Supreme Court ruling, on the Modoc Indian Prisoners, where the Supreme Court had ruled that Modoc Indians were not lawful combatants, so they could be shot, on sight, to justify his assertion that individuals apprehended in Afghanistan could be tortured.
Several top military lawyers, including Alberto J. Mora, reported that policies allowing methods equivalent to torture were developed in the highest levels of the administration.
On December 1, 2005, Yoo appeared in a debate in Chicago with Doug Cassel, a law professor from the University of Notre Dame. During the debate, Cassel asked Yoo, 'If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?'.
To which Yoo replied 'No treaty.' Cassel followed up with 'Also no law by Congress—that is what you wrote in the August 2002 memo', to which Yoo replied 'I think it depends on why the President thinks he needs to do that.'
Victim enforcement may have worked better compared to the centralized approach, but it is hardly a foregone conclusion that it would work better than an "open season" system, especially one in which, as advocated here, victims could still intervene. Victims are not necessarily well-situated to prosecute claims against those who wrong them, after all. A properly designed system might correct for that.
It's a question of incentives and odds, as usual. Third parties won't catch all cases, of course. But they will have incentives to catch them. And if those don't suffice, just add to them with a sweetner, such as a publicly funded bonus or extra damages recoverable against the wrongdoers.