In this post, I will begin an exploration of the implications of deterrence aims for criminalization. By criminalization, I mean the decisions about what conduct to make criminal under what circumstances, and what level of punishment to associate with different crimes. As I discussed in the previous post in this series, I believe the overarching objective that should animate criminalization decisions should be the enhancement of social trust. Building trust is a difficult, but critical, objective for a diverse, individualistic society like ours, in which economic and social vitality depend on regular interactions between strangers and near-strangers. Acute, pervasive fears of victimization in such interactions would cause a social breakdown.
One way that the criminal-justice system builds trust is through the deterrence mechanism — that is, threats of hard treatment for those who harm the persons or property of others. Let’s call these kinds of injury “primary harms.”
The essential challenge arising from the deployment of deterrent threats is this: punishment itself necessarily includes or gives rise to primary harms, and there is no reason to view state-imposed harm as intrinsically less serious than other types of harm. (more…)