Doug Berman at Sentencing Law and Policy has posted one of the great questions in criminal law.

In many respects, the answer to this question is at the root of much of our policy decisions with the criminal justice system.  Recognizing that a question of this magnitude requires some fleshing out, Doug notes:

My students know that I say that the right answer to every good question is “it depends,” and I think that this is the right answer to [the questioner’s] great question.  First, of course, we need some sense of what “serious” crimes are hypothetically being prevented by denying freedom 50,000 offenders. 

[W]e also have the fundamental question of whether this hypo sets up a false choice because of the other costs of denying freedom to 50,000 offenders.  Specifically, at current rates, it could cost well over $2,000,000,000 deny this freedom for just one year.  I would think spending that $2 billion on additional cops (or better health care and schooling) could prevent even more serious crimes.  Plus, of course, there is the (abstract?) cost to freedom and liberty for the 49,500 offenders (and all who know them) from being locked up to prevent others from committing crimes.

Many would answer the question by quibbling with the details, which of course blinds us from the bottom line.  If we limit the definition of serious crimes to the basic malum in se stuff, murder, rape, assault, where do we draw the line.  If we were able to reduce the cost of incarceration, what “price” would be a fair trade for 500 serious crimes?  If $2 billion is too expensive, would $100 million be acceptable?

Then, of course, there is the head game that flows from how personally we take the question: If we, or our loved one, were the victim of one of these serious crime, there would be no cost too high to stop it.  But if the victim is someone we don’t know, part of that amorphous group of people who are the victims of crime currently, would we think differently?

This is not only an amazing difficult question to answer, and answer honestly, but the type of question that lawmakers and voters must ponder to arrive at the tipping point where “tough on crime” has gotten tough enough, or too tough.

In a perfect world, there would be no crime.  Of course, in that same perfect world, we would have no reason to incarcerate anyone since no one would do anything worthy of incarceration.  But it’s an imperfect world, and people do harm others with regularity.  As the debate rages about whether mass imprisonment, at monumental expense, is the right solution, there comes a point when we need to decide when enough is enough.

Not so easy, is it?