Deterrence (legal)

Deterrence is the use of punishment as a threat to deter people from offending. Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done.

The concept of deterrence has two key assumptions: the first is that specific punishments imposed on offenders will "deter" or prevent them from committing further crimes; the second is that fear of punishment will prevent others from committing similar crimes.[1]

Categories

Deterrence can be divided into three separate categories.

Specific deterrence focuses on the individual in question. The aim of these punishments is to discourage the criminal from future criminal acts by instilling an understanding of the consequences.

General or indirect deterrence focuses on general prevention of crime by making examples of specific deviants. The individual actor is not the focus of the attempt at behavioral change, but rather receives punishment in public view in order to deter other individuals from deviance in the future. The argument that deterrence, rather than retribution, is the main justification for punishment is a hallmark of the rational choice theory and can be traced to Cesare Beccaria whose well-known treatise On Crimes and Punishments (1764) condemned torture and the death penalty, and Jeremy Bentham who made two distinct attempts during his life to critique the death penalty.[2]

Incapacitation is considered by some to be a subset of specific deterrence. Incapacitation aims to prevent future crimes not by rehabilitating the individual but rather from taking away his ability to commit such acts. Under this theory, criminals are put in jail not so that they will learn the consequence of their actions but rather so that while they are there, they will be unable to engage in crime.

Not all crime deterrence comes from a criminal justice system. Controversial academic Gary Kleck concludes evidence suggests that private gun ownership and use significantly deter crime,[3] although some academics have concluded otherwise.[4][5][6][7][8][9]

Marginal deterrence

Marginal deterrence, a principle in the theory of criminal justice, states that it is prudent to punish a more severe crime more severely than a lesser crime and a series of crimes more severely than a single crime of the same kind.[10] Marginal deterrence is intended to deter criminals to limit their criminal acts. Without marginal deterrence, a criminal could benefit from committing additional crimes or using illegal methods to suppress law enforcement, witnesses or evidence. As an example, if robbery without force gave the same punishment as robbery by murder, a robber could make a rational choice to kill the victims to evade their testimonies. Marginal deterrence is therefore similar in conclusion but different in justifying rationale from the doctrine of proportionality often invoked in discussions of retributive justice.

Effectiveness

Measuring and estimating the effects of criminal sanction on subsequent criminal behavior is the historic and conceptual core of criminology.[11] Despite numerous studies using a variety of data sources, sanctions, crime types, statistical methods and theoretical approaches, there remains little agreement in the scientific literature about whether, how, under what circumstances, to what extent, for which crimes, at what cost, for which individuals, and perhaps most importantly, in which direction do various aspects of contemporary criminal sanctions affect subsequent criminal behavior. There are extensive reviews of this literature with somewhat conflicting assessments.[12][13][14][15][16]

Some research has shown that increasing the severity of a punishment does not have much effect on crime, while increasing the certainty of punishment does have a deterrent effect.[17] "Clearly, enhancing the severity of punishment will have little impact on people who do not believe they will be apprehended for their actions.". Similarly, enhancing the certainty of punishment will have little impact on people who do not believe that the sanctions to be imposed will be severe.

The use of 'heavy' punishment has been described as "the least effective and least fair principle of sentencing".[18] A study by a Canadian criminologist Paul Gendreau brought together the results of 50 different studies of the deterrent effect of imprisonment involving over 300,000 offenders. The report said: "None of the analyses found imprisonment reduced recidivism. The recidivism rate for offenders who were imprisoned as opposed to given a community sanction was similar. In addition, longer sentences were not associated with reduced recidivism. In fact the opposite was found. Longer sentences were associated with a 3% increase in recidivism. This finding suggests some support for the theory that prison may serve as a ‘school for crime’ for some offenders".[19]

A 2000 study by Uri Gneezy and Aldo Rustichini, A Fine Is a Price, has shown that introducing a fine for a previously unfined behavior may increase, rather than decrease, the unwanted behavior. This happens as the fine replaces a previous set of moral or ethical norms, and if it is low enough, it is going to be easier to overcome than the non-monetary criticism was. In other words, putting a price on something previously not on a market changes its perception drastically, and on occasion it can change it contradictory to what a deterrence theory would predict.[20]

The most recent studies into the matter though have found that deterrence does cause a decrease in criminal acts. A study by Prof. D.S. Abrams found that when one uses "the introduction of state add-on gun laws, which enhance sentences for defendants possessing a firearm during the commission of a felony, to isolate the deterrent effect of incarceration. Defendants subject to add-ons would be incarcerated in the absence of the law change, so any short-term impact on crime can be attributed solely to deterrence. Using cross-state variation in the timing of law passage dates, I find that the average add-on gun law results in a roughly 5 percent decline in gun robberies within the first three years. This result is robust to a number of specification tests and does not appear to be associated with large spillovers to other types of crime."[21]

Kuziemko found that sentence length has a substantial negative effect on recidivism: a three percent decline in recidivism for every extra month served.[22]

Another study using a European natural experiment uses the 1996 Bastille Day pardon in France to estimate the effect of sentence reductions on recidivism. (“[I]ndividuals who were in French prisons by Bastille Day benefited from a basic sentence reduction of one week, plus one additional week of reduction per residual month of sentence by Bastille Day, with total reduction not exceeding 4 months. By construction, this collective pardon generated a very significant discontinuity in the relationship between time served in prison and prospective date of release.”). They find that a greater sentence reduction via the pardon leads to an increase in expected future recidivism.[23]

Francesco Drago, Roberto Galbiati & Pietro Vertova, The Deterrent Effects of Prison: Evidence from a Natural Experiment, 117 J. POL. ECON. 257, 258–60 (2009) (using a natural experiment in Italy to corroborate a general deterrence theory, finding that an extra month in expected sentence reduces the likelihood to recommit a crime by 1.3%)[24]

Eric Helland & Alexander Tabarrok found that California’s three-strikes law has a deterrent effect and reduces third-strike arrests by 17–20%); Levitt, supra note 16, at 360–70 (finding deterrence to be a more important factor than incapacitation in explaining “the negative correlation between arrest rates and crime”.[25]

See also

References

  1. ↑ Wright, Valerie (November 2010). "Evo\nty vs. Severity of Punishment". The Sentencing Project. Retrieved 13 October 2012.
  2. ↑ Bedau, Hugo Adam (1983). "Bentham's utilitarian critique of the death penalty". The Journal of Criminal Law and Criminology (Northwestern University School of Law) 74 (3): 1033–1065. JSTOR 1143143.
  3. ↑ Kleck, Gary (February 1988). "Crime control through the private use of armed force". Social Problems 35 (1): 1–21. doi:10.1525/sp.1988.35.1.03a00010.
  4. ↑ Philip J. Cook; Jens Ludwig; David Hemenway, “The gun debate’s new mythical number: How many defensive uses per year?”, Journal of Policy Analysis and Management, 16.3, 1997
  5. ↑ David Hemenway, “The myth of millions of annual self-defense gun use: A case study of survey overestimates of rare events”, Chance – American Statistical Association, 10.3, 1997
  6. ↑ Philip J. Cook; Jens Ludwig, “Defensive Gun Uses: New Evidence from a National Survey” Journal of Quantitative Criminology, 14.2, 1998
  7. ↑ David Hemenway; Deborah Azrael, “The Relative Frequency of Offensive and Defensive Gun Uses: Results from a National Survey”, Violence and Victims, 15.3, 2000
  8. ↑ Daniel Webster; Jens Ludwig, “Myths about Defensive Gun Use and Permissive Gun Carry Laws”, Berkeley Media Studies Group, 2000
  9. ↑ David Hemenway; Mary Vriniotis, “Comparing the Incidence of Self-Defense Gun Use and Criminal Gun Use”, Harvard Injury Control Research Center, 2009
  10. ↑ A Note on Marginal Deterrence, by Steven Shavell
  11. ↑ Sherman, Lawrence J. (1993). "Defiance, Deterrence, and Irrelevance: A Theory of the Criminal Sanction". Journal of Research in Crime and Delinquency 30 (4): 445–473.
  12. ↑ Zimring, Franklin E.; Hawkins, Gordon J. (1973). Deterrence: The legal threat in crime control. Chicago: University of Chicago Press.
  13. ↑ Paternoster, Raymond (1987). "The deterrent effect of the perceived certainty and severity of punishment: a review of the evidence and issues". Justice Quarterly 4: 173–217.
  14. ↑ Blumstein, Alfred; Cohen, Jacqueline; Nagin, Daniel, eds. (1978). Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates. Washington, D.C.: National Academy of Sciences.
  15. ↑ Nagin, Daniel (1998). "Criminal deterrence research at the outset of the twenty-first century". Crime and Justice: A Review of Research 23: 1–42.
  16. ↑ Pratt, Travis C.; Cullen, Francis T. (2005). "Assessing Macro-Level Predictors and Theories of Crime: A Meta-Analysis". Crime and Justice: A Review of Research 32: 373–450.
  17. ↑ Wright, Valerie (November 2010). "Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment" (PDF). The Sentencing Project. Retrieved 13 October 2012.
  18. ↑ Martin, Jacqueline (2005). The English Legal System (4th ed.), p. 176. London: Hodder Arnold. ISBN 0-340-89991-3.
  19. ↑ Gendreau, P, Goggin, C, Cullen FT, The effects of prison sentences on recidivism, User Report: Office of the Solicitor General, Canada, 1999, p24.
  20. ↑ Shirky, Clay (2010). Cognitive Surplus: Creativity and Generosity in a Connected Age. Penguin. pp. 131–134. ISBN 978-1-59420-253-7. Retrieved 11 October 2012.
  21. ↑ Abrams, D. S. (2012). "Estimating the Deterrent Effect of Incarceration Using Sentencing Enhancements". American Economic Journal: Applied Economics 4 (4): 32. doi:10.1257/app.4.4.32.
  22. ↑ Ilyana Kuziemko, Going Off Parole: How the Elimination of Discretionary Prison Release Affects the Social Cost of Crime 13–22 (Nat’l Bureau of Econ. Research, Working Paper No. 13380, 2007),
  23. ↑ Eric Maurin & Aurelie Ouss, Sentence Reductions and Recidivism: Lessons from the Bastille Day Quasi Experiment 3 (Inst. for the Study of Labor, Discussion Paper No. 3990, 2009), available at http://ftp.iza.org/dp3990.pdf
  24. ↑ The Deterrent Effects of Prison: Evidence from a Natural Experiment, 117 J. POL. ECON. 257, 258–60 (2009)
  25. ↑ Does Three Strikes Deter? A Nonparametric Estimation, 42 J. HUM. RESOURCES 309, 315–17 (2007)
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