The Dead End of Deterrence

The Sentencing Project has a new report out that summarizes research on the effectiveness of criminal punishment as a deterrent.  It’s nothing pathbreaking, but it does offer a nice, succinct statement of the evidence against robust deterrence effects.  Here’s the conclusion:

Existing evidence does not support any significant public safety benefit of the practice of increasing the severity of sentences by imposing longer prison terms. In fact, research findings imply that increasingly lengthy prison terms are counterproductive. Overall, the evidence indicates that the deterrent effect of lengthy prison sentences would not be substantially diminished if punishments were reduced from their current levels. Thus, policies such as California’s Three Strikes law or mandatory minimums that increase imprisonment not only burden state budgets, but also fail to enhance public safety. As a result, such policies are not justifiable based on their ability to deter.

Based upon the existing evidence, both crime and imprisonment can be simultaneously reduced if policy-makers reconsider their overreliance on severity-based policies such as long prison sentences. Instead, an evidence-based approach would entail increasing the certainty of punishment by improving the likelihood that criminal behavior would be detected. Such an approach would also free up resources devoted to incarceration and allow for increased initiatives of prevention and treatment.

I’ll offer four reactions of my own.

First, criminal punishment does deter in the sense that people are less likely to commit crimes when you have a functional criminal justice system than when you don’t have one.  But no one is seriously suggesting that we abolish the criminal justice system.  The real question for policy debate is whether increasing the degree of punishment beyond what is already imposed for any given category of crime will reduce the incidence of that crime.  Although there is intuitive appeal to the proposition that more punishment inevitably means less crime, the research provides little support for the proposition.

Second, if increasing punishment across the board for a category of crime (e.g., by adopting a mandatory minimum statute) cannot reliably produce future reductions in crime, then it seems even less likely that an individual sentencing judge’s decision to “make an example” of a particular defendant will reduce crime.  Whenever I hear of a judge imposing an unusually long sentence in the name of deterrence, this always strikes me as an act of extraordinary and ill-advised hubris.  Rather than aiming for large-scale social effects, I would much rather see sentencing judges focusing on the individual human beings before them: the defendants, victims, and concerned family and community members.

Third, although I would generally discount deterrence in setting sentencing policy or making sentencing decisions in particular cases, it is possible that certain categories of crimes are more susceptible to deterrence than others.  In particular, it is possible that economic crimes perpetrated by white-collar offenders do indeed involve the sort of rational cost-benefit analysis that deterrence theory depends on.  In the federal system, there has been much effort since the 1980′s to move away from probation as the standard punishment for white-collar offenders and towards real prison time.  I have not seen any research indicating whether initiatives along these lines may offer more deterrence benefits than, say, mandatory minimums for street criminals.

Finally, the Setencing Project report suggests, as many psychologists and criminologists have also done over the years, that increasing the certainty of punishment produces greater deterrence benefits than increasing the severity.  Along these lines, I find it intriguing to contemplate a “grand bargain” between criminal law conservatives and liberals.  Liberals would surrender the procedural rights for defendants that make conviction of the guilty less certain.  Most clearly, I think, this would mean abandoning the Fourth Amendment exclusionary rule.  Other candidates would include Miranda and Crawford.  For their part, conservatives would give up mandatory minimums and life sentences.  The result would be more certain, but less severe punishment.  The payoff might be a criminal justice system that is both more humane and more effective at deterring crime.

Cross posted at Marquette Law Faculty Blog.

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4 Responses to “The Dead End of Deterrence”

  1. Eric Goldman says:

    I like your proposed “grand bargain.” In addition to the benefits you note, it seems like it would significantly reduce many costs caused by the system. You should write a law review article outlining the grand bargain in detail!

  2. Thanks for the comment, Eric. I think you are probably right about reduced costs, but I am not entirely certain about that. It is possible you might end up with more people being incarcerated, albeit for shorter terms on average. The net effect might or might not be an overall reduction in the prison population.

  3. Martin Tanz says:

    Professor O’Hear,

    You make some interesting points. Actually, deterrence only makes sense if the you greatly increase the chances of getting caught and punished. And you never really know if deterrence has worked since the deterred would be criminal doesn’t go through with his crime because of the security system in place, the lock on the door or window, or the cop patrolling the neighborhood.

    Though your proposal for a grand bargain has a certain appeal, I would be reluctant to give up even more of my client’s constitutional rights in return for shorter periods of incarceration. 1. We already have that. Defendants give up their rights every day in plea bargains in return for reduced exposure and more lenient sentences. 2. I can see the constitutional rights given up being permanent, while the shorter sentences would eventually get longer after the next election, in response to some new perceived threat to the community.

  4. Thant for your comment, Martin. It is good to hear from you, and I hope you are well. I like your observation that the grand bargain parallels what happens every day in plea bargaining. I think you are also correct that the bargain would be highly unstable in the realm of electoral politics. I think this is something that would have to be done via constitutional amendment — and I admit to being more than a little frightened about what might happen if we opened up the Bill of Rights to renegotiation today.