Cass Sunstein, David Schkade, and Daniel Kahneman, in a 1999 paper named Do People Want Optimal Deterrence, write:
Previous research suggests that people’s judgments about punitive damage awards are a reflection of outrage at the defendant’s actions rather than of deterrence. This is not to say that people do not care about deterrence; of course they do. Our hypothesis here is that they do not attempt to promote optimal deterrence; for this reason they do not make the kinds of distinctions that are obvious, even secondnature, for those who study deterrence questions. Above all, they may not believe that in order to ensure optimal deterrence, the amount that a given defendant is required to pay should be increased or decreased depending on the probability of detection, a central claim in the economic analysis of law.
If we're after optimal deterrence, we should punish potentially harmful actions more if they're hard to detect, or else the expected disutility of the punishment is too small. But apparently this does not accord with people's sense of justice.
Does this mean we should change our sense of justice? And should we apply optimal deterrence theory to informal social rewards and punishments, such as by getting angrier at antisocial behaviors that we learned of by (what the wrongdoer thought was) a freak coincidence?
Suppose (as seems likely to me) that in the near future it becomes much easier to detect when people are driving above the speed limit. In fact it may become virtually 100% certain that a speeding driver will be detected and fined.
What is your instinctive feeling about how this should affect speeding fines? I can imagine a couple of different responses. One is that the fine is a punishment for the risk you imposed on others by your reckless actions, and it should not change. The other is that with 100% detection, the State has become too powerful, and penalizing people as harshly as we do today would be like living in a police state. In fact I imagine there might be opposition to universal enforcement of speeding regulations on these grounds.
I have some sympathy for both views, but for me the second one predominates. And it is somewhat consistent with efficient deterrence. That is not my explicit motivation for favoring this view, but the effect is much the same. Fear of excessive enforcement by an all-powerful State motivates me to hope that in such circumstances, the penalties for crimes will be reduced, in order to leave some room for human weakness, as much a part of our culture as strength. Hence at least some of our instincts are in fact in rough accordance with optimal deterrence theory.