How much do we really know about criminal deterrence?

• Author: Paternoster, Raymond
• Position: Centennial Symposium: A Century of Criminal Justice

1. INTRODUCTION

   The concept of deterrence is quite simple--it is the omission of a criminal act because of the fear of sanctions or punishment. While not the entire premise, deterrence is certainly an important foundation of the criminal justice system. Law enforcement exists both to apprehend wrongdoers and to convince would-be wrongdoers that there is a risk of apprehension and punishment if they commit a crime. Laws that provide a host of different sanctions for the commission of criminal offenses (fines, probation, imprisonment) serve notice that criminal statutes contain a credible threat that--it is hoped--will inhibit those who have been punished from committing additional crimes (specific deterrence) and those who have not yet offended from committing crimes at all (general deterrence). Particular criminal justice policies such as police "crackdowns," enhanced enforcement in and surveillance of high crime areas or "hot spots," mandatory minimum sentences, sentencing enhancements for firearm possession, "three-strike" laws, and others are all enacted with the expectation that they will successfully engineer the crime rate down through deterring offenders and would-be offenders. It is reasonable to argue that a belief or expectation that sanction threats can deter crime is at the very heart of the criminal justice system.

   In spite of its central importance, and the very high expectation we have that legal punishment and criminal justice policies can inhibit crime, we do not have very solid and credible empirical evidence that deterrence through the imposition of criminal sanctions works very well. While we have an abundance of research about specific police, judicial, and correctional policies, as well as more general theoretical work about deterrence mechanisms, the evidence to date, while suggesting that there is a deterrence return to all that we do about crime, is more than a little flimsy. In essence, while we can say that there likely is a deterrent effect to the workings of the criminal justice system, (1) it is difficult to determine how strong an effect it is and why that effect is not stronger than we might think it should be. This Article explores at least two very important reasons why the empirical evidence in support of criminal deterrence is so weak: (1) it is very difficult to isolate and measure a deterrent effect precisely because a great many things must happen before deterrence can occur; (2) it just may be very difficult to generate strong deterrent effects through the legal system because the system is unable to exploit human rationality effectively. This Article examines selective features of the empirical deterrence terrain (more comprehensive reviews of the literature are both abundant and recent) with the intention of providing a glimpse of what we know about criminal deterrence and how our knowledge is very imprecise, how difficult it is to come by that knowledge, and what features of the legal system and its delivery of sanctions, and of people may contribute to our lack of precise knowledge about deterrence.

   The Article begins with a brief intellectual history of deterrence and the role of the Journal of Criminal Law and Criminology in that history. The following section discusses the causal mechanisms that define how the process of deterrence works. This causal process links the workings of the criminal justice system (the objective properties of punishment) to the perceptual properties of punishment held by individuals to crime and, in turn, both of these properties of punishment to crime. A causal effect of deterrence requires that each of the three links in this chain be present. Subsequent sections briefly review selected empirical studies about each one of the necessary causal connections in deterrence. The Article concludes with a more speculative discussion about what it is about the criminal justice system and about human beings that contributes to the generally weak, generally imprecise empirical support for criminal deterrence through legal sanctions.

2. A BRIEF INTELLECTUAL HISTORY OF DETERRENCE THEORY IN CRIMINOLOGY

   1. INTELLECTUAL ROOTS

      There are two standard, but nonetheless productive, sources to consult for an understanding of the intellectual history of deterrence theory. The first is an essay, On Crimes and Punishments (On Crimes), written in 1764 by the Enlightenment philosopher Cesare Beccaria, (2) and the second is Jeremy Bentham's An Introduction to the Principles of Morals and Legislation (Introduction to the Principles), published in 1789. (3) Although Beccaria is often cited as the founder of the classical school of criminology, On Crimes does not really contain a fully developed theory of crime as much as Bentham's does. Beccaria's On Crimes is best thought of as a collection of principles that an enlightened ruler might use to make the administration of his legal system more systematically rational and therefore, Beccaria would argue, efficient. (4) Nevertheless, the essay does contain discussions about the characteristics of punishment that form the foundation of deterrence theory. (5) Bentham's Introduction to the Principles contains a more fully articulated theory of crime that provides a better foundation for a rational choice theory of crime. (6)

      On Crimes begins by clearly describing Beccaria's purpose--not to question authority, but to make the exercise of authority more rational:

      Whoever might wish to honor me with his criticism should therefore begin by understanding clearly the design of this work, a design which, far from diminishing legitimate authority, must serve to increase it, if reasoning rather than force can prevail among men, and if benevolence and humanity justify it in the eyes of all. (7) Becarria was an Enlightenment thinker who was repulsed by the cruelty and barbarism of the legal codes under the anciens regimes throughout Europe. (8) These codes allowed such practices as secret accusations, torture, convictions without trial, and a host of not only cruel but disparate punishments. (9) These practices were offensive to Beccaria because their irrationality made them ineffective for crime control. (10) What Beccaria proposed in their place was a corpus of principles for authorities to follow that would make their rule more rational and, therefore, more effective. (11) He proposed a system of legal reforms that included clearly written laws, a restrained judiciary, the abolishment of torture and secret accusations, and a proportionality between the harm produced by the crime and the amount of punishment visited upon the offender. (12)

      Becarria argued that the motivation to commit crime was found in ubiquitous self-interest, which he referred to as "the despotic spirit[] which is in every man," (13) and that the "tangible motives" (14) to commit crime had to be countered by punishments. But the power of the sovereign is not

      limitless; instead, the authority of the sovereign is premised on the consent of the governed--the social contract in Enlightenment terms--wherein each person surrenders only a limited part of his or her freedom in exchange for protection against others who would harm him or her. (15) In Chapter 23 of On Crimes, Beccaria argued that punishment must be proportionate to the crime: crimes that cause the greatest damage to society should be punished the most severely, and the least serious crimes should result in the least painful punishments. (16)

      Even before this, however, Beccaria presented (in Chapter 20) a proposition that has been axiomatic in deterrence theory ever since. Certain punishment is a much more effective deterrent than severe punishment:

      One of the greatest curbs on crimes is not the cruelty of punishments, but their infallibility.... The certainty of a punishment, even if it be moderate, will always make a stronger impression than the fear of another which is more terrible but combined with the hope of impunity; even the least evils, when they are certain, always terrify men's minds.... (17) He argued that punishments that are certain, severe enough to sufficiently offset the anticipated gains of crime, and arrive immediately after the crime would make for a more effective legal system than the system that existed at the time, which combined great cruelty and the seemingly random exercise of mercy. (18) Very much the original deterrence theorist, Beccaria's position was that the self-interest to commit crime has to be thwarted by legal punishment that is certain, proportional, and swift. (19)

      In the penultimate chapter of On Crimes, Beccaria made an interesting observation that is returned to at the end of this Article. Chapter 41 is entitled "How to Prevent Crimes," and Beccaria began this chapter with the observation that "[i]t is better to prevent crimes that to punish them." (20) Of course, the reader could not be blamed for thinking that after forty chapters he had already fully explained how crimes can be prevented crime can be deterred by the threats provided by a rational and efficient legal system of punishment, the structure of which makes up the first forty chapters of On Crimes. While Beccaria believed, without a doubt, that clearly defined laws that enjoy a great deal of consensus, are enforced equally, and are associated with certain and measured punishment could secure compliance, he also seemed keenly aware of the limitations of the legal system in the

      prevention of most crime.(21) He argued that "the surest but most difficult way to prevent crimes is by perfecting education," by which he meant moral education or self-restraint--education on virtue.(22) Education allows individuals to avoid evil by enabling them to make better choices rather than securing their compliance through punishment, "which obtains only simulated and momentary obedience."(23) In terms of creating the conditions for maximum freedom and minimum evil (by both crime and punishment), Beccaria...