Efficiency and Fairness in Criminal Law: The Case for a Criminal Law Doctrine of Comparative Fault

Alon Harel

Criminal law is traditionally described as directing its injunctions exclusively to actual or potential criminals. This article will argue that the traditional view is normatively unjustified both on efficiency and fairness grounds. To disregard the victim's conduct in determining the sanctions of criminals is both inefficient and unfair. It is inefficient because dismissing the behavior of the victim as irrelevant to the concerns of the criminal justice system does not provide optimal incentives for victims to take precautions against crime. It is unfair to disregard the victim's conduct because given the greater likelihood that careless potential victims (relative to cautious ones) will become actual victims of crime, the expected costs of protecting careless victims are higher than the expected costs of protecting cautious ones. Hence, under the current system, cautious victims are exploited for the sake of protecting careless ones. Both efficiency and fairness considerations suggest that criminal law should adopt a criminal law doctrine of comparative fault, under which criminals who act against careless victims would be exculpated or their punishment mitigated.

June, 1993
Published in: 
California Law Review 82 (1994), 1181-1222