Max Stearns
Please allow an observation. In addition to Constitutional Law, I teach Economic Analysis of Law. I see puzzles, and I search for ways that the legal system helps to solve them, or sometimes does the opposite. This pursuit can lead to strange places. Here’s an example.
I live in an historical downtown neighborhood, and among the challenges of residential life is porch piracy. People order packages from various vendors, typically delivered through Amazon, and very often they're stolen from the front stoops. On many a block, including mine, when a package arrives, a neighbor will kindly grab it and later bring it to those residing in the home where it was delivered. It’s great to have wonderful neighbors. The thefts are enormously frustrating for the people purchasing the packages, and victims often vent their anger and frustration on the community social media page. I recall one such victim posting that she hopes that the thief enjoys her feminine hygiene products.
Several weeks ago, I went for a run downtown. While walking back, I observed a Honda Civic across the street from where I was walking with a smashed driver's side window. I went over and I saw broken glass all over the driver's seat and what appeared to be signs of a stolen driver’s side airbag removed from the steering column. I took a picture planning to post it on the community web page to alert the owner. Just then a man walked over to tell me that the same thing had happened to his car, also a Honda Civic, diagonally across the street. With his permission I also took a photograph of his car and later posted both, explaining that thieves are apparently targeting Honda civics.
A commenter on the post asked how much one could possibly profit from this form of theft. I was curious, so I did a quick on-line search. It turns out that in the grey market, one can sell used Civic airbags for $200. The approximate cost of repair is $900 to replace the airbag, $200.00 in labor, plus $200.00 for the window. And so, the thief’s $200.00 gain imposes $1300 loss on the victim.
The next day I was teaching my Law and Economics class. I presented a puzzle to my students. I explained that I was uncertain whether the criminal law system imposed greater penalties for crimes in which the benefit to the criminal is a relatively small percentage of the harm to the victim, here about one sixth (200/1300). I limited the analysis to crimes that involve only financial burdens or inconvenience as the analysis necessarily changes when dealing with threatened or actual physical harm.
I asked whether the criminal law system should impose a greater penalty if the ratio of benefit to the perpetrator over the harm to the victim is low, thereby producing an unnecessary loss of what economists refer to as social welfare, more or less meaning societal wealth. In other words, should the criminal law system impose a greater penalty for a crime in which, as with the Honda Civic, a $200 gain yields a $1300 loss (a one-sixth benefit to loss ratio) as compared, say, with a crime for which the $200 gain yields only a $300 loss (a two-thirds benefit to loss ratio). One student thoughtfully inquired whether such lower harm ratio crimes existed.
I immediately realized the obvious answer: porch piracy.
Imagine the would-be thief instead surveilled the neighborhood and stole packages from stoops with a total value of $200. There would be no property damage associated with this form of theft, and there’s little likelihood of a personal attachment to the thing stolen. One might imagine the victim having ordered a custom-framed family photograph, but that would be highly unusual. More typically the stolen good is a fungible commodity yet to integrated into the home. Although the value to the thief of the stolen good conveyed on the grey market is lower than it is to the person who bought the good, the ratio is far better than for the airbag. The porch piracy victim typically suffers a financial loss equal to the value of placing another order. And often the good can be delivered again in a day or two. Porch piracy produces an even lower social welfare loss ratio than my original hypothetical with a $200 gain to the thief against a $300 loss to the victim. Here the social welfare loss is the value of the stolen good in the grey market over the purchaser’s value, with the latter roughly equal to replacement cost.
There’s a legitimate objection to all of this. One student asked whether would-be thieves are likely to be deterred by what we can think of as a marginal increase in the penalty scheme designed to avoid an unnecessary social welfare loss, such as with the airbag theft. Truthfully, I don’t know. This is an empirical question, and there are complexities involving the necessary regress in any penalty scheme. Those setting any scheme must consider the maximum penalty for a crime category, based on gravity, and then discount back if the sanctions are to have an incremental, or marginal, impact in channeling behavior.
Certainly, there are separate penalties for vandalism. But here I’m strictly focusing on whether the criminal law scheme should impose greater penalties for gratuitous social welfare losses resulting from crimes like airbag theft where the thief knows that the gratuitous damage vastly exceeds the value of the gain. Although no one should wish to encourage any form of theft, certainly including porch piracy, it remains the case that as between these two forms of theft, the airbag thefts impose far greater social harm.
I realize that porch pirates are the scourge of many a neighborhood, including mine. One of the central lessons of the economic analysis of criminal law is that we can never eliminate crime entirely. Some degree of criminal activity is inevitable, and at some point, the cost of fighting against crime exceeds the benefits, as with everything else. Still, to the extent we can calibrate penalties to channel behaviors toward less damaging crime, especially when the burdens are strictly financial, the objective seems worthwhile.
So, at the end of the day, one cheer for porch pirates? I’m not sure, but I certainly welcome your comments.
Special thanks to my wonderful L&E students and to my colleagues, Amanda Pustilnik and David Gray, for helpful comments on an earlier draft.