Present Bias and Criminal Law
Although “present bias” (or weakness of will, impulsiveness, myopia, or bounded willpower) was flagged as an issue for legal examination by Tom Ulen and Russell Korobkin over a decade ago, the concept has received insufficient attention in the legal field - and most of that attention has focused on its implications for the regulation of credit and savings. But, as demonstrated by this Article, the inconsistency of time preferences has wider implications, especially for criminal law. First, present bias may have significant implications for the general deterrence of crime. Individuals with time-inconsistent preferences may give in to immediate temptations to offend, even though they will not plan to exploit more distant opportunities to offend. To create additional deterrence by exploiting the present bias, one must either make the deferred costs of crime immediate or make the immediate benefits of crime deferred. For this reason, present bias heightens the importance of timing arrests closer to the commission of a crime - which suggests overlooked benefits from undercover operations. It also increases the efficiency of private crime prevention when these measures pose costs that occur contemporaneously with the benefits of crime. Second, present bias explains addiction, otherwise puzzling conditions of probation and parole, and the self-control mechanisms for dealing with addiction and tempting criminal behavior. Preventative measures, whether imposed by the state as a condition of probation and parole or imposed by the potential offender through “self-exclusion,” work by preventing an individual from having the opportunity to succumb to temptation.