Undeterred
Amid acrimonious jeers the peasant is pushed and pulled to the wooden gallows. The creaky platform is a veritable stage where many villains have made their final curtain calls. A strained silence engulfs the crowd as the stoic executioner and priest play their parts with well-versed ease. Any last words? The rope chafes the peasant’s neck as he stutters a few inaudible phrases. Finally, conflagrations of cheers explode from all directions as the neck snaps and the body swings lifelessly. A rich or upstanding citizen during the 18th century would usually pay a fine or be deported to the colonies for most of England’s 200 capital offenses. Especially ill-bred or unpopular citizens accused of such crimes were often tortured till confession and hung.
Classical criminologists Bentham and Beccaria conceived an alternative to this capricious criminal justice system. Their influential, 18th century writings comprise the foundation upon which modern Deterrence Theory and Rational Choice Theory are built. Deterrence Theory states that a contemplated crime will not be acted upon if the threats of legal consequences outweigh the benefits of the crime. It is unnecessary to give too harsh of a sentence for a crime, but a light sentence will not deter future offending. Therefore, the punishment must fit its crime and it must be applied consistently (Akers and Sellers 2004). The eighth amendment of America’s Bill of Rights incorporated this theory into American law by prohibiting cruel and unusual punishment, and guaranteeing the right to a speedy trial. The influence of Deterrence Theory is rooted in American history and continues today. Thus, an understanding of Deterrence Theory is essential for deciphering American criminal justice.
There are two types of deterrence: general and specific. Specific deterrence refers to the likelihood that punished perpetrators will recidivate. General deterrence is the ripple effect that the punishment of perpetrators has on others in the population, causing them to fear state punishment by vicarious association (Akers and Sellers 2004). For example, if Aidan goes through a horrible legal ordeal because he was caught stealing a candy bar at 711, he may vow to never to steal a butterfinger again because of the risk of legal repercussions. This is specific deterrence. Then when Joe’s brothers or friends hear that Joe’s fine could buy hundreds of butterfingers, they may opt to just buy butterfingers rather than take the risk of a hefty fine. This is general deterrence.
According to Deterrence Theory, there are three variables that contribute to or discourage criminality: severity, certainty, and celerity of punishment (Akers and Sellers 2004). These are the tools with which legislators can tinker with levels of deterrence, and the avenues through which the theory can be empirically tested. It seems logical that the severity of the punishment for a crime would be linked to the fear of punishment. It is also clear that in order for deterrence to work, there must be some degree of perceived certainty attached to the prescribed consequences.
If the chance of getting caught while stealing a butterfinger seems to be less than 1%, then a 100 dollar infraction would not seem like such a big deal. Even for more serious crimes, the “tipping point” refers to the level of certainty of punishment required to deter criminality. Sociologists estimate that this tipping point is at around 1/3, i.e. a criminal must get caught and punished one third of the time in order to be deterred. Actual conviction rates fall far short of this (Akins 1/19/06). Yet there are also questions of whether criminals really think about the odds of getting caught, or if they have realistic notions of those odds. Not all criminals could pass Hedonistic Calculus 101 if it were a class, though it seems like it should be a prerequisite for a criminal lifestyle. With the existence of crimes like 2nd degree murder, in which forethought does not precede the crime, it is clear that some crimes are emotional in nature, beyond the reach of deterrence. Logical or not, Deterrence Theory must stand up to empirical evidence in order to be valid on any level.
Despite its long history, Deterrence Theory did not come under much scientific scrutiny until the 1960s. Early research focused on capital punishment and found that the death penalty had no deterrent effect (Akers and Sellers 2004). This undermined one of three central pillars of support for the death penalty, the other two of which are cost and retribution (Akins 1/26/06). Then, the uneven application of the death penalty to minorities led to a temporary abolishment of the death penalty in the 1972 Supreme Court case Furman v. Georgia. Concurring justices cited “cruel and unusual” punishment, an idea based upon the writings of Bentham and Beccaria.
More recent research suggests that in some circumstances, formal deterrence plays a role in crime prevention. Studies by Farrington et al. on crime and punishment trends in England and the U.S. suggest a weak correlation between the certainty of criminal sanctions and declining crime rates. They found an even weaker correlation between sentence severity and lower crime rates (Farrington et al. 1994; Langan and Farrington 1998). These studies reflect the general consensus on the issue. A study by Nagin and Pogarsky on DUI perceptions of college students found negative correlations between severity/certainty and offending, but additionally found no correlation at all between the likelihood of drunk driving and celerity of punishment (Nagin and Pogarsky 2001). It may seem that the issue can rest on the conclusion that for crimes with forethought, the certainty of legal punishment will have some deterrent effect, the severity of that punishment somewhat less, and celerity will be a non-factor. Unfortunately, it is not that simple.
Most research on general Deterrence Theory can be divided into two incomplete approaches. First, the macro-level approach utilizes official data to assess objective deterrence indicators versus crime rates. Second, the micro-level approach employs surveys to gather perceptual measures of deterrence and self-reported offending. Each methodology has benefits and drawbacks. Both approaches are problematic in that they make the bold assumption that objective and perceived deterrence coincide (Kleck et al. 2005). Without this link, macro and micro-level studies would be inapplicable to policy.
Contemporary research by Kleck and colleagues explored the gap between micro and macro-level research (Kleck et al. 2005). They studied five of the seven Uniform Crime Report index crimes (excluding rape and car theft) in fifty-four urban counties between 1988 and 1998 based upon consistency of crime definitions, availability of data and statistically significant felony rates. In order to evaluate objective deterrence, they combined UCR data on crime and arrests with Bureau of Justice Statistics' National Judicial Reporting Program data on convictions, sentences, and days between committing the crime and sentencing. So the UCR data encompassed objective certainty while NJRP data offered objective severity and celerity. Perceived deterrence was evaluated based upon 1998 phone interviews of 1500 randomly selected adult respondents in the same fifty-four counties. In order for Deterrence Theory to be valid, the perceptions of these respondents must at least correlate with reality.
Potential problems with the study include the lack of incarcerated respondents, who apparently had not been deterred. They also did not include the 20% of respondents who refused to take an uninformed guess at questions like average sentence lengths, which would dispose the results towards accuracy. Despite the fact that the methodology of the study could introduce bias towards a link between objective and perceived deterrence, none was found. There was no correlation between counties that were tougher on crime and responses estimating higher severity, certainty, or celerity. This study suggests that general deterrence is a rather insignificant factor in crime rates (Kleck et al. 2005).
What about specific deterrence? Clearly, if serial killers are put to death they will not offend again, but this could more accurately be considered the most certain form of incapacitation. Specific deterrence could be thought of as the lack of recidivism once an offender is released, while incapacitation occurs directly as a result of the time they are removed from the general public. Though recidivism is above fifty percent for many crimes (Akins 3/2/06), the specific deterrent effect may well be the factor that causes the certainty of punishment to be a noticeable aspect in crime reduction. In order to test this possibility, a study like Kleck et al. could be conducted that interviews current and past members of the incarcerated population and evaluates the jurisdictions of their crimes.
In the meantime, other social factors seem to be more important than formal sanctions in preventing crime. “Most people, most of the time and under most circumstances conform to the law because they adhere to the same moral values as those embodied by the law, not because they are worried about imprisonment” (Akers and Sellers 2004). The clear effect of informal sanctions such as social humiliation and the loss of social ties support the Control and Learning perspectives on criminal behavior and further weaken the use of harsher formal punishments. The challenge, then, would be to process criminals in a way that publicly humiliates them without violating their right to privacy or pushing them into a life of deviance.
In fact, punishment can backfire as it seeks to generate deterrence. Convicted felons become almost unemployable drains upon society. Serving time weakens their ties to conventional social attachments, strengthens their ties to deviant subcultures, and presents an opportunity to learn how to be a better criminal (Project for Ethical Government 1998). These factors, which span Learning, Labeling, and Control theories, may explain the lack of correlation between the severity of punishment and crime rates. Policymakers in America are either oblivious to this reality, or are determined to maintain a “get tough” image on crime for political gain. America, the land of the free, is also the country with the highest incarceration rate in the world. Of the nine million people incarcerated in the world, two million are American (Walmsley 2005). A significant proportion of inmates in American prisons committed non-violent offenses with no victim, especially drug crimes. In order to incapacitate the most serious of criminals who actually victimize others, it would be advisable to make victimless crimes such as drug possession and minor trafficking punishable by fines or other sanctions instead of prison time.
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Yet most of the solution lies outside of the so-called long arm of the law. In a free society we demand privacy. We don’t really want an authority figure to monitor our every move and possession. So it is necessary to take personal responsibility to make oneself and ones’ possessions hard targets for victimization. Police, neighbors, guard dogs, product designers and public service announcements could all play a role in promoting this idea. It would be significantly easier to steal a car without car alarms or advanced locking mechanisms and it would be a lot easier to get away with robbing a convenience store without cameras, height indicators, or silent alarm buttons. More controversially, the principle of target hardening suggests that right-to-carry (handgun) laws would be helpful in preventing victimization. Since most people do not commit crimes and most criminals would rather not attack somebody who is armed, it seems reasonable that the government should actually encourage gun ownership by responsible citizens. This concept would be welcomed by some Americans, and strongly opposed by others who maintain that more guns mean more violence and danger to children in the home. Only empirical studies could establish whether such policies would be helpful or detrimental to safety.
Despite its empirical weaknesses, deterrence theory represented a huge leap forward over the barbaric and arbitrary criminal justice systems that it replaced. Challenges continue as sociologists scrutinize the status quo in an effort to improve the social quality of life for American citizens. While deterrence theory continues to play an integral role in American criminal justice, available data suggests that policymakers should shift their focus. In terms of deterrence itself, they need to stop emphasizing severity of punishment in favor of increasing certainty. They also need to institute better policies to incapacitate serious criminals, aid in the hardening of potential targets of victimization, and instigate a reasonable level of informal sanctions for criminal offenders. While some suggested changes might be politically infeasible, it is the duty of both policymakers and everyday citizens to do whatever they can to create a more just and safe social world for future generations.
