We typically deter crime via a chance of punishment. Someone who commits a crime might get found out, prosecuted, convicted, and sentenced. So the amount of deterrence should increase with the chance of that sentence give committing a crime, with the size of the punishment implied by the sentence, and with the delay in that punishment relative to when the crime was committed.
Isn't the difference that the cases we let people pay more for are things that are only constrained by resources (so naturally we let people use their resources to increase them) while we forbid things that are already the "the right level"?
Ideally, the chance of catching any criminal would be 100% and everyone would have a brilliant lawyer, but we would want every crime to have infinitely long punishment.
I’m unsure whether this matters for your overall point, but do you have references for the claim that chance and level of punishment "both contribute the same to deterrence”? I’ve not looked at this literature, but I remember being told that the chance of punishment matters more than level. My first result on Google for ‘punishment severity frequency’ is this paper, which suggests that chance is more important than level. https://www.pnas.org/doi/10.1073/pnas.2108507118
On your 'pay for increased punishments' proposal: people might be willing to tolerate inequality in cases where the inequality sufficiently improves the chance of justice, because they believe (e.g.) that allowing people to hire private investigators or install cameras is more likely to lead to correct pronouncements of innocence/guilt. If you allow people pay to increase the severity of punishment, there isn't a comparable increase in the probability of a correct outcome. Admittedly, 'allowing people to pay for better lawyers' doesn't obviously increase the probability of a correct decision either, but I expect that most people who'd denounce the 'pay for punishment' proposal would also object to the status quo where rich people can hire better lawyers.
If the probability of correct verdict is low, does the severity of punishment deter in any way? If I commit a crime, they'll catch a random guy and do bad things to him. So what?
In other words, the effect of substituting severity of punishment for good verdict is likely to be a lot of crime combined with a lot of innocent people serving long sentences.
This proposal - “they can hire a private investigator, pay snitches to talk, or install cameras to give more info to investigators.” - increases p(punishment | guilty)
Whereas this proposal - “if the federal sentencing guidelines said that a particular crime should be punished by 41-51 months in prison, we might let each person pay so much per month to increase those levels” - simply increases p(punishment)
If I was an incorrectly convicted person, I’d vastly prefer 1) to 2) even if both could in theory extend my sentence by the same amount. Therefore, I think 1) has reason to be more acceptable than 2).
Is the primary (supposed) virtue of an adversarial legal system that it is the most efficient way of reaching the truth of any conflict? If yes, I don’t think many feel the adversarial legal system achieves this. I wonder how often this is true: Before a civil trial, the public is often in agreement that the deciding factor in the trial will not be 1)not the truth of the issue but instead 2)the quality of the lawyers. Yet after a trial, the public seems often in agreement that the truth of the matter was the deciding factor.*
*This seems to be qualified by many big exceptions, maybe enough that it is not at all an accurate general description.* But if it is an accurate general description, it displays an interesting phenomenon of the public’s ex ante realism about prospective inequality but ex post reluctance to acknowledge such inequality. Folks seem to have caught on though, so maybe it is more accurate to say that, when not the center of attention, which for most people is 100% of the time, the courts provide a tolerable appearance of equality, at least on a superficial level.
Paying more for a lawyer seems obviously different to bribing a judge. A good lawyer can present the best argument for your case, whereas a bribed judge can simply rule in your favor even if you have no case.
Might the difference be the “potential” of equality rather than any particular incidence? For example with lawyers, hypothetically any given lawyer could perform as well as any other, but if they were operating under distinct rules for plaintiff and defendants it eliminates some of the “level playing field” under which that potential could be realized. The same in sport with performance enhancing drugs, even though natural talent and training provide similar means of distinguishing performance. Hypothetically anyone could train to similar levels of excellence.
Assigning lawyers at random, and somehow equalizing how much litigants and defendants pay, would greatly lower the earnings of the most competent lawyers and thus be opposed by almost all bar associations. It might be welcomed by the lower-earning lawyers though.
Britain used to, and I believe still does, allow private prosecution of crimes such as robbery, thus enabling a victim who is rich and/or has lots of friends to see his attacker go to prison even if the local prosecutor's office doesn't want to bother. I wish this were allowed in the US; it would limit the ability of corrupt prosecutors to let off real criminals (of the prosecutor's own party) while persecuting victims who defend themselves. Of course it would work better if the official prosecutors didn't have immunity.
We let people pay to increase the chance of catching someone else committing a crime, but isn't it often an aggravating factor if you pay to cover up your own crimes?
Rich enough to be able to be at a computer at 12pm on a Monday to spam the refresh button on a concert website? Rich enough to have many friends with the same lax work schedule capable of helping your group get tickets? No problem, society doesn't scorn you.
But if you suggest that first-come-first-serve is dumb and we should just use an auction for all in-demand concert tickets or Burningman tickets or whatnot... nope, that's somehow unfair and unacceptable.
Public school education. Everyone gets into a public school, can’t buy your way in to a better one directly, but you can fork up the cash to buy a house in the district with a better system.
"We currently let people pay more to increase the chance of punishment for crimes where they are the victim." This is an intentionally obtuse and misleading interpretation of the reasons a crime might go unpunished and the mechanisms (including effort or paid effort) for increasing it due to a few of those reasons.
This kind of conflation of different dimensions of the practical limits of criminal investigation and punishment does harm to your credibility.
Emergency medicine? It's accepted, at least in Anglophone countries, that the rich will get better treatment for chronic conditions: but for victims of a terrorist bombing, or a mass shooting, to receive different emergency care by virtue of their health insurance would seem wrong. And a doctor who saw two people collapse with heart attacks, and chose to treat the less serious one as they thought they'd be better paid for doing so, would risk being expelled from the profession.
If accurate, could plausibly point in at least two directions. Professional capture - doctors wouldn't like to have to personally take responsibility for choosing who dies on the basis of how much money they have, as doing so would undermine the image they have of themselves, and the basis on which society grants them status. Might chime with the fact that the things you're allowed to spend money on in the legal system are those which make lawyers richer.
Also, and overlapping, the universal desire not to have to be faced with the reality of the choices we make. And, where we can't avoid being faced with reality, being prepared to pay for reality to be postponed until it can occur at a convenient distance, veiled in mist.
In practically terms, it's covered by the possibility of plea- bargaining, whis is indeed covered by the executive branch.
People mostly think of punishment as retribution, not deterrence. It follows from that that there should be an “ideal” size of punishment, but chance of getting caught should always be increase. It doesn’t help that people don’t understand probabilities nor trade-offs; for instance, many people say the chance of an innocent being arrested should be zero, which would obviously only be possible if we did not arrest anyone.