Law in Failure: Controlling Genetically Based Human Primate Aggression

 A murdered child loses an entire future. The parents may spend the rest of their lives living with the absence. An assault can leave a person disabled, frightened, or in pain long after the court closes its file.

No compensation restores that child. No completed proceeding erases that suffering. Any account of crime that treats these losses as a footnote has started in the wrong place. The purpose of controlling aggression must be to protect people from becoming its next victims. Consider the range: a schoolyard bully, an extortion gang, an invading army, a government organizing mass murder. The scale changes. A recurring opportunity remains: use superior force, intimidation, or a cooperating group to obtain rewards at someone else’s expense. The bully gets the money. The aggressor gets the territory. The ruler gets rid of an opponent. The victim gets the funeral. My argument is that bullying, predatory crime, aggressive war, and democide can draw on overlapping evolved human capacities for aggression, domination, and coalition building. Inherited differences can influence these capacities. Circumstances and institutions determine how they are expressed and what rewards they receive. The biology deserves attention. A 2019 study using teacher ratings of 8,215 twin children estimated the heritability of bullying perpetration at approximately 70% in that sample. A meta-analysis of 41 studies, involving 27,147 participants, attributed approximately half the variation in impulsivity to genetic influences in its best-fitting model, with substantial environmental influence as well. [1,2] These are estimates of variation within studied populations and environments. They are not percentages of an individual’s behavior caused by genes. Genetic influence also does not provide a reliable forecast of a particular person’s conduct. A 2021 study covering 87,485 children found that its genetic scores explained less than 1% of differences in aggression in independent samples. [3] The evidence supports inherited influences on aggression, bullying, and impulsivity. It does not establish an identical genetic cause of a schoolyard assault and a world war. The connection proposed here concerns shared human capacities, individual susceptibility, and recurring incentives. An inherited propensity is not a criminal conviction. A demonstrated history of violent acts is evidence of conduct. These are different things. The evolutionary history reaches back far beyond modern humanity. Our ancestors lived amid Africa’s changing forests, woodlands, and grasslands. Research around Kenya’s Olorgesailie basin documents increasing instability in water and vegetation beginning roughly 400,000 years ago, associated with a period of technological and social change. Unreliable resources may have favored adaptability. That study does not establish that drought created human aggression. [4] Walking upright began much earlier. Ardipithecus ramidus combined climbing with bipedal movement 4.4 million years ago in a substantially wooded habitat. Early Homo sapiens fossils from Morocco date to about 315,000 years ago. The familiar story of ancestors suddenly coming down from disappearing trees onto a Kenyan plain compresses millions of years into one misleading event. [5,6] Nevertheless, the ecological mechanism is plausible. When food, water, or territory becomes scarce, taking another group’s resources may offer an advantage. So may cooperation, migration, trade, or innovation. The successful strategy depends on the circumstances. Selection rewards reproductive success. It does not hold a hearing on good intentions. Chimpanzees provide unusually direct evidence that organized violence can bring advantages to the winning group. At Ngogo in Uganda, researchers documented lethal attacks on neighboring chimpanzees followed by territorial expansion. A 2025 study reported increased female fertility and infant survival after that community’s lethal aggression and territorial gains. The observed benefits support an explanation involving access to resources; they do not demonstrate that every attack benefits its perpetrators. [7,8] A larger 2014 analysis of 18 chimpanzee communities and four bonobo communities found that patterns of lethal aggression were better explained by adaptive strategies than by the measured effects of human disturbance. [9] Coalition killing can arise without a government, an ideology, or a legal profession. The death rates can be substantial. A 2006 analysis calculated a median of 271 violent deaths per 100,000 individuals annually across five chimpanzee populations, combining killings within and between communities. The UN reported a worldwide human intentional-homicide rate of 5.2 per 100,000 in 2023. These are not directly matched categories: chimpanzee territorial killings resemble warfare, while human homicide statistics generally exclude deaths directly attributable to armed conflict. They do not establish a precise species-wide ratio. [10,11] Chimpanzees are living relatives, not our ancestors. Their behavior cannot reconstruct every stage of human prehistory. It can demonstrate that killing competitors sometimes brings a material and reproductive advantage. Evolution also shaped restraint. Research on early hominin canine teeth interpreted their reduced differences between males and females as evidence of comparatively reduced male aggression. That is an inference from anatomy, but it contradicts a simple story of steadily increasing aggressiveness. [12] Our inheritance includes capacities for cooperation, restraint, and attack. Human organization can recruit all three. Richard Wrangham distinguishes reactive aggression, arising in response to provocation or threat, from proactive aggression, planned to achieve a goal. His evolutionary account explains how relatively restrained everyday behavior can coexist with a considerable capacity for calculated violence. [13] An angry schoolyard punch and a planned extortion campaign are different problems. Repeated bullying can be calculated: select someone weaker, enlist an audience, obtain a reward, and discourage resistance. A government killing program can be calculated too. It can involve patient planning, obedient subordinates, transport, records, and concealment. Intelligence can improve the harvest or improve the ambush. Cooperation is essential to both rescue teams and death squads. For the criminal, the reward need not be cash. It can be revenge, excitement, status, sexual gratification, domination, or the removal of a witness. An organization can seek protected markets and recurring revenue. A terrible social bargain can remain an attractive personal bargain. The law faces another problem: people differ in how they respond to it. The rule follower stops because there is a rule. The careful person stops because something might go wrong. The empathic person stops because he does not want another person to suffer. Those restraints can operate before a threatened sentence enters the calculation. The legal system should not claim all that restraint as its own achievement. Greg Pogarsky’s deterrence framework distinguishes people who comply for reasons largely independent of threatened punishment, people responsive to sanctions, and people comparatively unresponsive to them. These are differences in responsiveness, not permanent moral classifications. [14] For an aggressor acting impulsively, the immediate reward may outweigh a distant consequence, or the consequence may receive little thought. In a study of 252 college students surveyed about drinking and driving, Nagin and Pogarsky found that punishment severity had less influence among people more focused on the present. That supports unequal responsiveness to threats, rather than establishing that every impulsive offender is undeterrable. [15] A calculating offender presents another problem: he may understand the rule and expect to escape its consequences. The National Institute of Justice’s research summary emphasizes the likelihood of being caught over simply increasing punishment severity. [16] My criticism is the imbalance when law adds restraint to people already inclined to restrain themselves while failing to interrupt the person doing the harm. If a careful victim fears legal consequences while an aggressor expects little interference, the restraint can fall on the wrong side of the encounter. Effective protection must include recognition of lawful self-defense and intervention against repeated aggression. War can enlarge the bargain from personal domination to national coercion. The potential prizes include territory, mineral deposits, political control, and the destruction of a rival’s power. A leader may hope to strengthen his position at home through conflict abroad. These are possible incentives, not an explanation of every war. Defensive war can be necessary to stop an aggressor. Fear, miscalculation, ideology, and alliances can also drive escalation. But a war need not benefit the population to reward the people directing it. The leader may gain power while soldiers and civilians lose their lives. Contractors may earn revenue while taxpayers assume debt. A benefit warrants investigation; it does not by itself prove responsibility for starting a war. World war requires organization, decisions, and circumstances that allow violence to expand. An aggressive personality alone cannot explain it. The schoolyard question nevertheless survives at the larger scale: who can protect the target, who rewards the aggressor’s followers, and who can stop the aggression? Democide puts the problem inside government itself. R. J. Rummel used “democide” for murder by government, encompassing genocide, political murder, and mass murder. It can include deliberately lethal imprisonment and knowingly imposed deadly conditions. Ordinary battlefield deaths are not automatically democide. [17] A ruler can use murder to eliminate opponents, frighten survivors, seize property, or preserve control. The police, prisons, military, and official records can become instruments of the crime. A victim can report a thief to the police. Where does he report a police force carrying out the ruler’s killing policy? In Syria, UN investigators documented state-policy killings and deliberately life-threatening detention conditions amounting to extermination. In North Korea, a UN commission identified crimes against humanity including murder, extermination, and knowingly causing prolonged starvation. These findings concern organized institutions and policies. [18,19] Sudan supplies a documented connection among armed power, family control, and resources. The U.S. Treasury identified Al Junaid as controlled by RSF commander Mohamed Hamdan Dagalo and his brother Abdul Rahim Dagalo, and described gold mining and exports as important revenue sources for the family and the RSF. Separately, UN investigators documented deliberate civilian attacks, large-scale killings, and starvation by the warring forces, including RSF crimes against humanity. [20,21] Financial gain does not explain every killing. Ethnic persecution, hatred, revenge, ideology, and the pursuit of power can reinforce one another. A family relationship alone establishes neither participation nor guilt. Drought is therefore a possible pressure, not a universal cause. A wealthy ruler can want more wealth. A secure government can manufacture an enemy. Scarcity can be real, exaggerated, or imposed by the people exploiting it. In my judgment, the greatest and most toxic failure of the legal profession is allowing the organizers of mass killing to remain protected and practically beyond reach while their victims remain exposed. The man who gives the order can be safer than the soldier who carries it out, the witness who reports it, or the child who lives under it. Lawyers help draft immunities, argue their scope, and administer the institutions applying them. States and political leaders also create these rules and determine whether judgments are enforced. The responsibility is institutional as well as professional. There are real legal barriers. In its 2002 Arrest Warrant judgment, the International Court of Justice held that an incumbent foreign minister enjoyed immunity before foreign national courts even when accused of war crimes or crimes against humanity. The Court distinguished that procedural protection from impunity and identified other possible avenues of prosecution. [22] For victims, a legal avenue that cannot be used in practice may deliver very little protection. Civilian protection is a different rule. A political or administrative official without military status or a command function cannot be attacked merely because of his office. Civilians can lose protection during direct participation in hostilities. Neither a political title nor an accusation alone settles whether force against a particular person is lawful. [23] Protection against attack does not erase criminal responsibility. The Rome Statute rejects official capacity as an exemption from responsibility before the International Criminal Court and provides for responsibility for ordering crimes and, under specified conditions, failures by commanders and civilian superiors to control subordinates. Jurisdiction and enforcement still determine whether those provisions reach a particular person. [24] The profession should answer for the gap between promises of accountability and actual protection of victims. That protection must extend inside prison. “Put him in prison” is an incomplete answer if he continues assaulting prisoners or staff. Confinement can remove an offender from the community while leaving other people exposed to him. The Supreme Court has recognized a duty to protect prisoners from violence by other prisoners. [25] Those potential victims deserve protection too. A prison sentence is not a license for another prisoner to rape, terrorize, or kill the person serving it. A demonstrated record of serious violence is relevant to assessing danger. It is fundamentally different from assigning guilt to innocent people because of ancestry, religion, a diagnosis, or a presumed genetic susceptibility. Where threatened punishment fails, prevention requires actual limits on the offender’s ability to cause harm. The effectiveness of confinement must be judged by the protection it delivers, including to the people inside. Death is permanent incapacitation: an executed person cannot commit another assault. That fact belongs in an honest debate about capital punishment. It does not by itself establish who can lawfully be executed or whether execution is justified in a particular case. Self-defense against an immediate deadly attack and execution of a person already under control are distinct legal questions. Pennsylvania’s self-defense statute turns on immediate necessity and specified threatened harms. A past record can inform an assessment, but does not alone establish that immediate necessity. [26] Debate about punishment should acknowledge the suffering of victims and the irreversibility of execution. Neither side is entitled to erase inconvenient human consequences. The financial accounting must also be honest. At an assumed $100,000 per year, 30 years of custody totals $3 million before inflation or discounting. California’s enacted 2025–26 budget put average annual prison operating costs at approximately $127,800 per person. Its estimated annual savings from removing one person without closing facilities were much lower, approximately $21,500. Average expenditure and money actually saved are different measures. [27] Capital prosecution, defense, appeals, and custody before execution also have costs. Employment and billable hours are expenditures; they do not themselves demonstrate that victims have been protected. But money is only part of the burden. A parent’s agony after a child’s murder, an assault victim’s permanent disability, a prisoner’s terror of another attack, and a staff member’s death must count in any serious assessment. A budget that omits those consequences is not a complete account of the costs. The victim’s suffering does not become less important because it is difficult to price. An evolutionary explanation supplies no excuse. It helps explain why a sermon, a rule, or a remote threat may fail when an aggressor receives an immediate reward. The test belongs at every scale: does the bullying stop, does the victim become safer, does the dangerous offender lose the ability to continue, and does the organizer of mass killing face effective accountability? A legal system should be judged by those results. The child who did no harm to anyone must not become the forgotten person in a sophisticated discussion of the offender. Who gained? Who suffered? Who could have prevented the next attack? Stop being surprised when violence that pays keeps finding customers. Start demanding protection that reaches the people carrying its cost. REFERENCES [1] Veldkamp SAM, et al. Genetic and Environmental Influences on Different Forms of Bullying Perpetration, Bullying Victimization, and Their Co-occurrence. Behavior Genetics. 2019;49:432–443. https://doi.org/10.1007/s10519-019-09968-5 [2] Bezdjian S, Baker LA, Tuvblad C. Genetic and environmental influences on impulsivity: A meta-analysis of twin, family and adoption studies. Clinical Psychology Review. 2011;31:1209–1223. https://doi.org/10.1016/j.cpr.2011.07.005 [3] Genetic association study of childhood aggression across raters, instruments, and age. Translational Psychiatry. 2021;11:413. https://doi.org/10.1038/s41398-021-01480-x [4] Potts R, et al. Increased ecological resource variability during a critical transition in hominin evolution. Science Advances. 2020;6:eabc8975. https://doi.org/10.1126/sciadv.abc8975 [5] White TD, et al. Ardipithecus ramidus and the paleobiology of early hominids. Science. 2009;326:75–86. https://pubmed.ncbi.nlm.nih.gov/19810190/ [6] Hublin JJ, et al. New fossils from Jebel Irhoud, Morocco and the pan-African origin of Homo sapiens. Nature. 2017;546:289–292. https://doi.org/10.1038/nature22336 [7] Mitani JC, Watts DP, Amsler SJ. Lethal intergroup aggression leads to territorial expansion in wild chimpanzees. Current Biology. 2010;20:R507–R508. https://pubmed.ncbi.nlm.nih.gov/20620900/ [8] Female fertility and infant survivorship increase following lethal intergroup aggression and territorial expansion in wild chimpanzees. Proceedings of the National Academy of Sciences. 2025. https://doi.org/10.1073/pnas.2524502122 [9] Wilson ML, et al. Lethal aggression in Pan is better explained by adaptive strategies than human impacts. Nature. 2014;513:414–417. https://doi.org/10.1038/nature13727 [10] Wrangham RW, Wilson ML, Muller MN. Comparative rates of violence in chimpanzees and humans. Primates. 2006;47:14–26. See especially Table 5. https://doi.org/10.1007/s10329-005-0140-1 [11] United Nations Statistics Division. The Sustainable Development Goals Report 2025, Goal 16. Global intentional-homicide rate for 2023. https://unstats.un.org/sdgs/report/2025/Goal-16/ [12] Suwa G, et al. Canine sexual dimorphism in Ardipithecus ramidus was nearly human-like. Proceedings of the National Academy of Sciences. 2021;118:e2116630118. https://doi.org/10.1073/pnas.2116630118 [13] Wrangham RW. Two types of aggression in human evolution. Proceedings of the National Academy of Sciences. 2018;115:245–253. https://doi.org/10.1073/pnas.1713611115 [14] Pogarsky G. Identifying “deterrable” offenders: Implications for research on deterrence. Justice Quarterly. 2002;19:431–452. https://doi.org/10.1080/07418820200095301 [15] Nagin DS, Pogarsky G. Integrating celerity, impulsivity, and extralegal sanction threats into a model of general deterrence: Theory and evidence. Criminology. 2001;39:865–892. https://doi.org/10.1111/j.1745-9125.2001.tb00943.x [16] National Institute of Justice. Five Things About Deterrence. June 5, 2016. https://nij.ojp.gov/topics/articles/five-things-about-deterrence [17] Rummel RJ. Death by Government. Chapter 2: Definition of Democide. https://www.hawaii.edu/powerkills/DBG.CHAP2.HTM [18] UN Independent International Commission of Inquiry on the Syrian Arab Republic. Out of Sight, Out of Mind: Deaths in Detention in the Syrian Arab Republic. A/HRC/31/CRP.1. 2016. https://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A-HRC-31-CRP1_en.pdf [19] OHCHR Seoul. Accountability. Summary of the 2014 DPRK Commission of Inquiry and subsequent accountability findings. https://seoul.ohchr.org/en/node/261 [20] U.S. Department of the Treasury. Treasury Sanctions Military-Affiliated Companies Fueling Both Sides of the Conflict in Sudan. June 1, 2023. https://home.treasury.gov/news/press-releases/jy1514 [21] UN Independent International Fact-Finding Mission for the Sudan. “A war of atrocities”: Sudan civilians deliberately targeted, UN Fact-Finding Mission reports international crimes on large-scale. 2025. https://sudan.un.org/en/301357-%E2%80%9C-war-atrocities%E2%80%9D-sudan-civilians-deliberately-targeted-un-fact-finding-mission-reports [22] International Court of Justice. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, February 14, 2002, especially paragraphs 51 and 58–61. https://www.icj-cij.org/case/121 [23] International Committee of the Red Cross. Frequently Asked Questions: IHL and the escalating conflict in the Middle East. Section: Who and what can be targeted? https://www.icrc.org/en/article/faq-ihl-and-escalating-conflict-middle-east [24] Rome Statute of the International Criminal Court, especially Articles 25, 27 and 28. https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf [25] Farmer v. Brennan, 511 U.S. 825, 833–834 (1994). Duty to protect prisoners from violence by other prisoners. https://tile.loc.gov/storage-services/service/ll/usrep/usrep511/usrep511825/usrep511825.pdf [26] Pennsylvania Consolidated Statutes, Title 18, Section 505: Use of force in self-protection. https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.005.005.000..HTM [27] California Legislative Analyst’s Office. How Much Does It Cost to Incarcerate a Person? 2025–26 enacted budget; updated September 2025. https://lao.ca.gov/PolicyAreas/CJ/6_cj_inmatecost

Law in Failure: Why Crime? It Pays Very Well

 Why is there so much crime? One answer is uncomfortable because it is so ordinary: crime can pay very well.

The offender collects the reward. The victim pays the bill. The taxpayer finances the response.

A criminal does not need to believe that crime benefits society. He needs to believe that it benefits him. Money, pleasure, revenge, power, excitement, and approval can all serve as payment. A legal system that overlooks these rewards will keep expressing surprise when people pursue them.

Crime has several paychecks.

• Money: Theft, robbery, embezzlement, scams, and extortion transfer wealth without the offender having to earn it.

• Recurring revenue: Drug trafficking, exploitation, and organized fraud can produce repeated payments.

• Avoided expenses: Deliberate wage theft, criminal tax evasion, illegal dumping, and intentional safety violations can increase profit by shifting obligations and risks onto others.

• Competitive advantage: Bribery, bid rigging, and stolen trade secrets can help dishonest operators defeat honest competitors.

• Control: Threats, stalking, and violence can force another person to comply.

• Gratification and revenge: Some offenders seek excitement, sexual gratification, retaliation, or the satisfaction of humiliating another person.

• Status and belonging: A criminal peer group can reward conduct that the rest of society condemns.

• Protection of earlier gains: Witness intimidation and concealment can help preserve proceeds and avoid accountability.

Some wage, tax, and regulatory violations are civil offenses; criminal liability requires the applicable legal elements. That distinction matters. So does recognizing that crime includes conduct in an office, a payroll department, and a public contract—not just conduct on a sidewalk.

The money is enormous.

The FBI reported nearly $21 billion in internet-crime losses for 2025. Those are reported victim losses, not a complete accounting of criminal profit.

GAO estimated annual federal-government fraud losses of $233–$521 billion using fiscal years 2018–2022, a period that included pandemic conditions. Internationally, the ILO’s 2024 report estimated $236 billion in annual illegal profits from forced labor in the private economy. These figures measure different things, cover different populations, and overlap with other estimates. They cannot be added into one honest total.

Nevertheless, the scale is unmistakable. Crime is capable of generating immense rewards.

The chance of consequences matters more than the size of the threat.

A severe sentence on paper has limited deterrent value to someone who expects never to be identified. The National Institute of Justice summarizes the research: certainty of being caught generally matters more for deterrence than increasing punishment severity.

The practical question is how likely an offender thinks discovery and accountability are. A system can announce fierce penalties while leaving large gaps in detection, investigation, prosecution, and recovery.

An economic inference follows: when the gain is immediate and the expected consequence is remote, crime becomes more attractive. When a financial sanction leaves a business ahead after the violation, it can function as a business expense. Requiring repayment alone may remove the proceeds without imposing much additional cost for trying.

Every successful offense can become an advertisement for the next one.

Escaping consequences may teach an offender that the risk was exaggerated. Other people see the spending and status. They seldom see an accurate balance sheet of failures, injuries, imprisonment, and death.

This is one reason perceived reward matters as much as actual profit. A young recruit may be buying a chance at the leader’s lifestyle while earning very little himself.

Levitt and Venkatesh’s study of one drug-selling gang found highly unequal compensation. The published analysis emphasized the prospect of future riches, while the risks more than offset the average wage advantage. That finding supports a crucial distinction: crime may pay the boss very well while exploiting the recruit.

Silence can help the offender succeed.

The National Crime Victimization Survey found that about 48% of nonfatal violent victimizations and 31% of household property victimizations were reported to police in 2024. Reporting is only the first step; it is not the same as identification, arrest, conviction, or restitution.

Fear, shame, dependence on an abuser, inconvenience, and expectations that nothing will happen can discourage reporting. Threats can make silence part of the offender’s control.

Each barrier between the offense and accountability can help the offender retain the reward.

Crime also benefits from customers and intermediaries.

Stolen goods require buyers. Exploitation requires people willing to buy the product or accept the savings. Organized financial crime benefits from people who move, conceal, or knowingly receive its proceeds.

A useful inference is that focusing exclusively on the visible offender can miss the market that makes the offense worthwhile. Accountability must reach the people who knowingly enable the transaction, with evidence of their conduct and intent.

Technology adds reach. The FBI’s 2025 report described complaints involving voice clones, fake identities, and believable fraudulent videos. A remote offender can reach victims across jurisdictions, which complicates investigation and cooperation.

One offender can generate an extraordinary number of victims.

A 1992 ATF study involving interviews with 100 imprisoned armed career criminals estimated about 160 offenses annually—roughly three a week. Its simple calculation used $2,300 per offense, producing $368,000 in annual costs per offender in historical dollars. It excluded physical and psychological damage to victims. Those figures describe a selected group and an old cost model; they are not a current national average.

A separate RAND survey reanalysis of robbery and burglary found sharply uneven offending rates, including a small group committing several hundred offenses a year.

That is the point worth retaining: a short conviction record can conceal a much longer history of offending. The number of cases proved in court is not necessarily the number of victims created.

The criminal’s income is smaller than the public’s bill.

A thief may receive only a fraction of a stolen item’s replacement value. The victim may also lose work, pay for repairs, replace documents, and live with fear. An assault may produce little financial gain for the attacker and years of disability for the victim.

A 2021 study estimated the annual U.S. burden of crime at $4.71–$5.76 trillion including transfers from victims to criminals, or $2.86–$3.92 trillion excluding those transfers. Its broad accounting included enforcement, prevention, victims’ losses, fear, and time spent avoiding or recovering from crime. These are model estimates, not a verified 2026 total.

The public can lose far more than the offender receives.

Money does not explain everything.

Interviews with 200 repeat property and street offenders, analyzed in a 2022 study, found that simple rational-choice models did not adequately explain their decisions. Intuition, perceived luck, and distortions associated with drugs or alcohol also mattered.

Some offenses are impulsive. Some provide excitement, approval, domination, or revenge. Limited legitimate opportunities can make an illegal reward more tempting without making the offense inevitable or excusable. Explaining behavior is necessary if the objective is to prevent it.

Nor is every offender permanently committed to crime. NIJ’s review notes that offending generally peaks in late adolescence or early adulthood and declines thereafter; most juveniles who offend do not continue into adulthood.

That means a serious policy must distinguish a currently prolific, dangerous offender from someone whose risk has declined.

Make crime harder to profit from—and lawful conduct easier to sustain.

The priorities should be concrete: improve detection and investigations; protect victims and witnesses; recover criminal proceeds; pursue restitution; disrupt markets that knowingly purchase stolen goods or exploitation; and direct proportionate enforcement toward demonstrably persistent, serious offending.

Treatment, education, employment, and credible routes out of criminal groups also belong in the response. They address reasons why an offender may continue even when the financial return is poor.

Incarceration can prevent an offender from victimizing people in the community while confined. Its value depends on the person’s current risk, the offenses prevented, the cost, and whether other offenders replace the activity. A historical estimate cannot prove that every additional prison year saves money.

Due process is part of competent enforcement. Punishing the wrong person leaves the actual offender free.

Crime also creates paid work for lawyers, investigators, security firms, and correctional contractors. That does not establish complicity. It does justify a policy question: are institutions being judged by activity and expenditure, or by fewer victims, less repeat offending, and money returned to those harmed?

Law should make the criminal’s success harder and the victim’s recovery easier.

As long as the offender collects the reward and everyone else absorbs the damage, crime has a powerful incentive to continue.

Stop being surprised that rewarded behavior repeats.

Sources: [1] FBI, Cryptocurrency and AI Scams Bilk Americans of Billions (2025 Internet Crime Report). https://www.fbi.gov/news/press-releases/cryptocurrency-and-ai-scams-bilk-americans-of-billions [2] GAO, Fraud Risk Management, GAO-24-105833 (2024). https://www.gao.gov/products/gao-24-105833 [3] ILO, Annual profits from forced labour amount to US$236 billion (2024). https://www.ilo.org/resource/news/annual-profits-forced-labour-amount-us-236-billion-ilo-report-finds [4] NIJ, Five Things About Deterrence (2016). https://nij.ojp.gov/topics/articles/five-things-about-deterrence [5] Levitt and Venkatesh, An Economic Analysis of a Drug-Selling Gang's Finances, Quarterly Journal of Economics (2000). https://doi.org/10.1162/003355300554908 [6] BJS, Criminal Victimization, 2024, table 4 (2025). https://bjs.ojp.gov/document/cv24.pdf [7] ATF, Protecting America: The Effectiveness of the Federal Armed Career Criminal Statute (1992). https://www.ojp.gov/pdffiles1/Digitization/137208NCJRS.pdf [8] Visher, The RAND Inmate Survey: A Reanalysis (1986). https://www.ojp.gov/ncjrs/virtual-library/abstracts/rand-inmate-survey-reanalysis-criminal-careers-and-career-criminals [9] Anderson, The Aggregate Cost of Crime in the United States, Journal of Law and Economics (2021). https://chicagounbound.uchicago.edu/jle/vol64/iss4/7/ [10] Uncertainty and heuristics in offender decision-making: Deviations from rational choice, Journal of Criminal Justice (2022). https://doi.org/10.1016/j.jcrimjus.2022.101923 [11] NIJ, Pathways to Desistance From Crime Among Juveniles and Adults (2021). https://nij.ojp.gov/topics/articles/pathways-desistance-crime-among-juveniles-and-adults-applications-criminal-justice [12] Levitt, Understanding Why Crime Fell in the 1990s, Journal of Economic Perspectives (2004). https://pricetheory.uchicago.edu/levitt/Papers/LevittUnderstandingWhyCrime2004.pdf [13] Blakely v. Washington, 542 U.S. 296 (2004). https://tile.loc.gov/storage-services/service/ll/usrep/usrep542/usrep542296/usrep542296.pdf [14] United States v. Booker, 543 U.S. 220 (2005). https://www.law.cornell.edu/supremecourt/text/04-104 [15] NALP, Trends in Graduate Employment (1985–2008). https://www.nalp.org/july09trendsgradempl [16] U.S. Sentencing Commission, Mandatory Minimum Penalties (fiscal year 2025 data). https://www.ussc.gov/research/quick-facts/mandatory-minimum-penalties [17] People v. Ceballos, 12 Cal. 3d 470 (1974), court opinion. https://law.justia.com/cases/california/supreme-court/3d/12/470.html [18] Pennsylvania, 18 Pa.C.S. § 505, Use of force in self-protection. https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.005.005.000..HTM [19] Pennsylvania, 18 Pa.C.S. § 507, Use of force for the protection of property, subsection (e). https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.005.007.000..HTM [20] NALP, Market for New Law Graduates at Highest Level in 20 Years (class of 2007 findings). https://www.nalp.org/uploads/1181_07selectedfindings.pdf

Law in Failure: Proposed Model Rule on Efficient Legal Services and Disciplinary Sanctions

The following is proposed language for adoption, including proposed penalties. The conduct rule should be adopted together with a companion disciplinary enforcement provision.

Proposed Rule 1.5A — Competent and Efficient Use of Legal Technology

(a) Professional standard. A lawyer shall use reasonably available legal technology, including artificial intelligence, when the lawyer knows or reasonably should know that its competent use would materially reduce the client’s total cost or delay, or materially improve the accuracy, completeness, or usefulness of the legal work, while satisfying the duties of competence, confidentiality, and compliance with applicable law and court orders.

(b) Assessment of benefits. The lawyer shall evaluate the complete assignment, including preparation, verification, correction, technology expenses, and necessary human judgment. The assessment shall consider demonstrated performance on comparable tasks and the client’s objectives and resources. A lawyer shall maintain familiarity with relevant technology ordinarily available to competent practitioners in the lawyer’s field.

(c) Justified exceptions. A lawyer may decline a particular technology because of inadequate reliability, confidentiality risks that cannot reasonably be controlled, legal restrictions, disproportionate implementation costs, or an urgent deadline preventing safe implementation. An informed client preference for a lawful alternative may also justify that alternative if the resulting fee remains reasonable.

When declining technology materially affects cost or quality, the lawyer shall document the specific reason and explain the consequences to the client, ordinarily before incurring the additional expense.

(d) Prohibited motives. Preserving billable hours, satisfying billing quotas, protecting revenue from unnecessary labor, or general hostility to technology shall not justify declining a method that satisfies paragraph (a). A lawyer shall not manufacture unnecessary work or knowingly retain an inefficient method primarily to increase the client’s bill.

(e) Billing. Hourly charges shall reflect professional time actually and reasonably devoted to the matter. A lawyer shall not:

• Charge hypothetical hours eliminated by technology.
• Present automated processing time as human labor.
• Inflate review time to recover revenue lost through efficiency.
• Disguise ordinary overhead as an undisclosed client expense.

Fixed and contingent fees remain subject to Rule 1.5. Substantial reductions in required labor shall be considered with the other relevant fee factors. Technology expenses must be reasonable, accurately described, and disclosed before being incurred. Client agreement shall not validate an improper fee.

(f) Training. General education necessary to maintain technological competence shall be paid for by the lawyer or firm. Reasonable training costs for an unfamiliar tool specifically requested by the client may be charged only under an advance written agreement identifying those costs.

(g) Responsibility for quality. The lawyer remains responsible for the finished work. Appropriate professional review shall include verification of material factual assertions, cited authorities, and legal propositions, and correction of material errors or omissions. Required confidentiality safeguards and client consent shall be secured before protected information is submitted to a provider.

(h) Records and disclosure. The lawyer shall maintain accurate billing records and concise records of material decisions under paragraph (c). Preservation, discovery, confidentiality, privilege, and work-product obligations shall be applied to the particular materials. AI histories shall receive no automatic presumption of either protection or disclosure.

(i) Supervisory accountability. Managerial and supervisory lawyers shall establish reasonable procedures for compliance. A lawyer who orders or knowingly ratifies a violation shall be individually accountable. A managerial or supervisory lawyer who knows of a violation while its consequences can be avoided or mitigated and fails to take reasonable remedial action shall also be accountable.

Proposed disciplinary penalties

These are presumptive starting points, subject to findings concerning culpability, injury, and aggravating or mitigating circumstances.

Established misconduct	Proposed presumptive penalty
First, isolated negligent violation; little or no injury; prompt correction; low risk of repetition	Private admonition and required remedial education
Negligent violation causing material avoidable expense or a material quality defect	Public reprimand and supervised probation for up to 12 months
Knowing or reckless violation causing material injury or a substantial risk of injury	Suspension for 6–12 months
Intentional false billing, deliberate concealment of overcharges, or repeated knowing violations	Suspension for 1–3 years
Systematic dishonest exploitation causing serious injury, theft of client funds, or repeated intentional abuse demonstrating unfitness after prior discipline	Disbarment

For this provision, recklessness means conscious disregard of a substantial and unjustifiable risk that the conduct violates Rule 1.5A.

Financial redress. In addition to discipline, the adjudicator shall order cancellation of unpaid improper charges and repayment of improper fees already collected, with interest at the adopting jurisdiction’s legal judgment rate from the date of payment. Additional fee disgorgement may be ordered for serious dishonesty. The amount shall be established through evidence of the actual assignment and legitimate services provided.

Aggravating factors. Dishonest financial motives, multiple affected clients, vulnerable clients, prior discipline, false records, obstruction, retaliation, and refusal to make ordered repayment shall support increased sanctions.

Mitigating factors. Prompt voluntary correction, cooperation, a clean disciplinary history, and effective remedial measures may support reduced sanctions. Repayment shall not automatically terminate disciplinary proceedings.

Enforcement conditions. Orders may require education, independent billing audits, supervised practice, and reimbursement of reasonable disciplinary proceeding costs. Public disciplinary decisions shall identify the lawyer, misconduct, financial redress, and reasons for the sanction while protecting client information.

Proof and procedure. Disciplinary counsel shall prove misconduct and the required culpability by clear and convincing evidence. The lawyer shall receive notice, an opportunity to challenge evidence, impartial adjudication, and review. Decisions shall be assessed using information reasonably available when the work occurred. Nonuse of AI or an adverse case outcome alone shall not establish misconduct.

Effective date. The new obligations shall apply prospectively beginning 180 days after adoption. Existing duties concerning competence, confidentiality, truthful billing, and lawful fees remain enforceable during the transition.

This proposal extends existing ABA guidance on AI competence and actual-time billing. Its sanction structure draws on ABA disciplinary enforcement provisions, which include restitution, fee disgorgement, reprimand, suspension, and disbarment; the specific triggers and periods above are proposed additions. americanbar.org

Law in Failure Lawyers Who Refuse AI Make Clients Pay for Inefficiency

A lawyer who knowingly makes a client pay for avoidable work is ripping off that client. The hours may be real. The waste is real, too. AI now gives the profession a practical test of whose interests it puts first.

A client needs a contract, a complaint, or an expert report. An available AI system could produce a useful draft in minutes and help identify omissions, test arguments, and improve the finished document. A lawyer who rejects that opportunity should have to explain what the client gains from the extra expense.

The client should not have to finance the lawyer’s refusal to modernize.

Consider an illustration. A lawyer expects to spend 12 hours preparing a finished document. AI produces a more thorough initial draft in 12 minutes. Suppose the lawyer actually spends 12 minutes preparing the AI inputs and another full hour verifying and revising the result. The billable work totals 1.2 hours.

Illustrative method	Actual lawyer time	Fee at $500 per hour
Manual preparation and review	12 hours	$6,000
AI inputs plus professional review	1.2 hours	$600
Difference	10.8 hours	$5,400

These are illustrative figures, not measurements of every legal assignment. They show why necessary human review does not, by itself, erase the possibility of enormous savings. Actual preparation, investigation, negotiation, or filing work must also be counted when the assignment requires it.

The quality argument has evidence behind it. A randomized study published in April 2026 tested upper-level law students using a legal AI tool, a reasoning model, or no AI. Both tools improved overall work quality and speed. The strongest gains appeared in complaint analysis and persuasive writing. The study found no meaningful overall benefit on its short nondisclosure agreement task, and accuracy did not improve consistently across tasks. The sensible conclusion is to evaluate the tool against the assignment. journals.sagepub.com

Evidence also extends to practicing lawyers. A September 2026 working paper studied 133 patent lawyers at eleven U.S. firms in a three-month randomized trial. Blinded expert attorneys judged the work. Access to a custom AI drafting assistant improved benchmark drafting quality at both ten and ninety days, with larger gains among junior lawyers. The study also found that lasting gains in unaided professional judgment were concentrated among senior lawyers. That supports combining AI with expertise and continued training. shapingwork.mit.edu

Better legal work can mean identifying a missing issue, exposing an unsupported assertion, or reorganizing an argument so that a judge can understand it. I would have lawyers test AI for those purposes and measure the result. A longer document earns no credit merely for being longer. Completeness means covering the relevant issues accurately.

Hourly billing creates a financial incentive that deserves scrutiny: fewer hours can mean less revenue from that client. Professional ethics must keep the client’s interests ahead of that incentive.

The clearest existing rule is straightforward. ABA Formal Opinion 512 says an hourly lawyer must charge actual time, including genuine review, rather than the hours the work would have taken without AI. A lawyer cannot turn a 12-minute drafting exercise into a fictional 12-hour entry. www.americanbar.org

Alabama’s 2026 guidance reinforces that distinction and generally treats AI subscription charges as office overhead unless the client agrees otherwise. Genuine supervision and legal judgment are compensable. Saved hours are not working hours. alabar.org

Knowingly inventing hours also implicates Pennsylvania Rule 8.4(c), which prohibits dishonesty and misrepresentation. A fabricated invoice deserves disciplinary scrutiny. www.padisciplinaryboard.org

The harder problem is the lawyer who actually spends twelve hours doing work manually when a safe, reliable method could accomplish the assignment far more efficiently. Pennsylvania Rule 1.5 prohibits illegal or clearly excessive fees. Its factors include the time and labor required, the difficulty, skill, customary charges, and results. Hours actually worked are therefore only part of the inquiry. www.padisciplinaryboard.org

My argument is that knowingly preserving unnecessary labor solely to enlarge an invoice should support an excessive-fee challenge. Current guidance does not establish a universal duty to use AI for every document. North Carolina expressly leaves the choice generally to professional judgment, while requiring client input when the decision to use or decline AI implicates fees. Those qualifications leave room for judgment; they should also require an explanation of avoidable expense. www.ncbar.gov

Applicable state rules govern discipline; ethics opinions guide their interpretation. The proposed duty to explain avoidable expense should be made explicit.

A fixed fee can reasonably reward expertise, responsibility, results, and efficiency. It does not remove the fee limits. Opinion 512 specifically warns that keeping the same flat fee after AI substantially reduces the work may be unreasonable. A lawyer should be able to explain the value provided at the agreed price. www.americanbar.org

Nor should the client ordinarily pay for the lawyer’s general education in using AI. Opinion 512 treats learning a tool regularly used in practice as part of maintaining competence, with a limited exception where a client specifically requests an unfamiliar tool and agrees to the training charge. www.americanbar.org

A recent federal decision also weakens a blanket objection that AI drafting necessarily destroys protection for litigation preparation. In Villanueva v. Las Vegas Metropolitan Police Department, No. 2:24-cv-00125-ART-DJA, Judge Anne R. Traum’s September 29, 2026 order partly reversed a demand for an expert’s entire ChatGPT history. storage.courtlistener.com

The expert’s AI-generated case summaries were discoverable because he considered them in forming his opinions. His prompts, deposition preparation outline, and report drafting material were protected. The court also held that his use of ChatGPT did not waive otherwise applicable protection in that instance. It treated ChatGPT as research, drafting, and editing software. This was a discovery ruling, not a certification of the expert’s accuracy or a decision about legal fees. storage.courtlistener.com

The lesson is to handle AI materials competently. Rule 26 distinguishes facts or data considered by a reporting expert from protected drafts. Counsel must plan for required preservation and disclosure while asserting applicable protection. Ordinary contract drafting does not automatically qualify for litigation work-product protection. www.law.cornell.edu

Accuracy and confidentiality are real obligations. Stanford researchers’ 2024 evaluation found that the particular commercial legal research tools tested still generated hallucinations in roughly 17 to 33 percent of queries. That is a historical finding about those systems and tests, not a current error rate for every AI product. It establishes why verification matters. RegLab

Lawyers should verify authorities, compare factual summaries with source records, review the provider’s data practices, and comply with the court’s applicable rules. Alabama’s guidance requires professional judgment and safeguards. These duties belong in a competent workflow. They warrant necessary review time and can justify declining a particular tool when the risks cannot be managed. alabar.org

I propose a stronger express professional standard:

When a reasonably available technology can materially reduce cost or improve legal work without compromising accuracy, confidentiality, or the client’s objectives, the lawyer should use it or explain to the client the reason for declining it.

Bar authorities should adopt that standard and examine fee complaints for unnecessary labor as well as invented hours. Law firms should compare completed work, including verification costs, and record where AI helps, where it fails, and how the client benefits.

Clients should ask for clear answers before agreeing to the price:

• What parts of this assignment can AI perform safely and effectively?
• What human investigation, judgment, and review remain necessary?
• How will the savings affect my hourly bill or fixed fee?
• If you decline AI, what specific benefit justifies the additional cost?

Lawyers can earn more by serving additional clients and offering work those clients could previously not afford. North Carolina’s opinion expressly recognizes increased throughput as a legitimate benefit of AI efficiency. www.ncbar.gov

Lower drafting costs can make a sound contract, a meritorious complaint, or a carefully checked expert report affordable. That opportunity deserves a place in every serious discussion of access to justice.

The client’s money belongs to the client. Professional ethics should protect it from avoidable waste.