Ever since Gary Becker won the Nobel Prize for Economics, the economic analysis of law has risen on the curriculum of the leading law schools. I am even told reliably that the Wooding School has recently introduced a financial module for young trainee lawyers. But, apart from satisfying the curiosity of those with an interest in the multi-disciplinary subject of law and economics, it is important because it focuses on the very core issues which underpin not only business law, but the very rules which act as the permafix to our social order.

Property rights, the efficiency of markets, contract law, and more have been analysed in detail ever since Ronald Coase developed his theory in his essay: The Problem of Social cost, in 1960. Since then others have entered the space, including US Federal judge Richard Posner (Economic Analysis of Law), Steven Shavell (Foundations of Economic Analysis of Law), and David D. Friedman (Law Order: An Economic Account).

Although law and economics focuses principally on the private legal system, including tort law, stretching from product liability to medical negligence, it also has a relevance on criminal law and the efficient enforcement of law as a public good. But the issue is of more than just academic interest. It is central to the uncontrollable sentencing that we see almost every day in local magistrates’ courts, the worst since the days of Guyanese Lennox Perry who sat on the bench in the 1960s. What we have now is an undeclared war on young people, black men in particular, with the passive conspiracy of the professional middle class and the rest of the judicial system.

Of course, people who commit criminal acts, however defined, must be punished, and economic theory suggests that criminals and other social deviants respond to incentives, which is the rile of sentencing. However, magistrates, no matter how extreme, in sentencing must take in to consideration wider social obligations, such as remanding a suspect as a form of punishment. There are certain principles applicable in remanding an accused, which apply in most liberal democratic societies.
The first of these is that the accused person would not be able to interfere with evidence, witnesses or the victim. The second principle is that the accused must not be put in a position to commit any more offences. But there is an economic principle, such as taking someone out of work or putting him/her at risk of losing his/her job, especially if the alleged offence is not as serious – murder, other forms of violence, drug dealing etc. – such as use of foul language, or minor theft.

However, to remand a street seller with four young children and no history of previous criminality for allegedly receiving stolen fruit and  vegetables, thereby depriving an entire family of its breadwinner is an abuse of office; to remand a homeless teenage mother for squatting in an empty government building is not just an abuse of office, but demonstrates a clear example of emotional ignorance. All these we have witnessed recently without a word of protest from politicians, public intellectuals, so-called radical lawyers, especially those who spend their time and energy trying to pressure the government to allow a convicted drug dealer to remain in the island, even though, as far as we know, this evil dealer in death has not offered the police or courts any cooperation in terms of his local connections.

In terms of wider criminal justice policy, what is really worrying is that despite pretences of a formal sentencing policy structure, no one seems to be in control of these rogue magistrates – not the chief magistrate, the chief justice, nor the attorney general, where the buck stops. Our criminal justice system is seriously broken.

Even more, no one seems to take any real interest in this break down in law and order because it removes the so-called underclass from the streets, no matter the cost to the economy and its threat to the social order. Already Barbados has one of the highest incarceration rates in the civilised world, over and above those on probation, on bail, have been fined or in any other way involved with the criminal justice system. Maybe the remand system is being used as a form of controlling unemployed numbers, since like the US, people in prison are not recorded as being economically inactive.

Whatever the right wingers may say, this is an issue in urgent need of serious public discussion, especially as we enter a general election year.