Follow by Email

"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

August 30, 2010

Deterrence Effect Weak

Deterrence is often used as a justification for increased punishment for criminal acts. From a law and economics perspective, the expected punishment for a criminal act is the product of the chance of being arrested and convicted and the punishment meted-out after a conviction. Increasing criminal penalties is one way the expected punishment for a crime can be increased. The other way is by increasing the chance of arrest and conviction.

However, increasing expected punishment can theoretically reduce crime in two ways. The first way that crime may decline with an increase in expected punishment is through deterrence. Individuals, who would otherwise commit a crime with a lower expected punishment, modify their behavior and not commit the crime due to the increase in expected punishment. They decide the cost of the crime is too high compared to its benefits.

The second way crime is reduced through an increase in expected punishment is through incapacitation. If individuals who would otherwise commit crimes are convicted and incarcerated, then the number of crimes committed should decline because the individual’s circumstances prevent them from committing the crime. Separating incapacitation effects from deterrence effects provides a methodological challenge to researchers.

A recent meta-analysis of the research on deterrence found that the deterrent effect is small, especially when one looks at the more rigorous studies. Specifically, the deterrence effect from greater punishment is small to non-existent and deterrence from the certainty of punishment slightly larger. [i]

One researcher of criminal deterrence is Steven D. Levitt of the University of Chicago and Freakonomics fame. In two research papers, Levitt provides support for deterrence under certain circumstances. Levitt, in a procedurally innovative study, concluded that increasing arrest rates lead to a reduction in crime and the reduction from deterrence was greater than that from incapacitation, especially for property crimes.[ii] By increasing the chances of arrest, one may increase deterrence. The findings in this study do not address increased penalties on changes in crime due to deterrence.

In a second research paper, Levitt examined the differential of punishment between juvenile and adult criminal justice systems in various states. Levitt concluded that the increased penalties in the adult criminal justice system reduced crime. The deterrence effect was almost twice as great for violent crimes compared to property crimes. In situations where defendants have reason to know and understand the differential of criminal penalties, deterrence is present. (Incidentally, he further concluded that there was not a strong relationship between the punitiveness of the juvenile justice system and a juvenile defendant’s involvement in crime as an adult.) [iii]

If deterrence is not effective, then prison sentences that exceed those required to address incapacitation needs and just deserts for the crime, may be a waste of societal resources. If deterrence is effective, then such sentences may reduce overall societal crime. However, it appears that deterrence effect is small, if it exists at all, and depends on the individual case.

The reason deterrence may not be as effective under many circumstances involves some basic psychological principles of human behavior and behavior modification. I will discuss that research in my next entry.

[i] Pratt, Travis C., Francis T. Cullen, Kristie R. Blevins, Leah E. Daigle, and Tamara D. Madsen, 2006, “The Empirical Status of Deterrence Theory: A Meta-Analysis” pp 3670370 in: Taking Stock: The Status of Criminological Theory, Francis Cullen et al, editors, Transaction Publishers.

[ii] Levitt, Steven D, 1998, “Why do Increased Arrest Rates Appear to Reduce Crime: Deterrence, Incapacitation, or Measurement Error”, Economic Inquiry, Jul 1998, pp. 353-372.

[iii] Levitt, Steve D., 1998, “Juvenile Crime and Punishment,”, Journal of Political Economy, vol. 106 No. 6 pp 1156-1185.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

August 22, 2010


One of the factors a judge in Wisconsin must consider at a criminal sentencing is the protection of the public. If a defendant is considered dangerous by being a threat to either the physical safety of others or the property of others, a defendant may be incarcerated to protect the community. If a defendant is incapacitated through incarceration, he is unable to commit crimes he may desire to commit had he not been incapacitated.

Studies have been completed that attempt to quantify the value of incapacitation in terms of number of crimes reduced. The estimates of the reduced crimes due to incarceration have varied considerably. There are many conceptual and procedural hurdles in quantifying reduced crimes due to incapacitation that make me skeptical of the results.

A recent study out of Cornell attempted to quantify the amount of crime prevented through incapacitation by using a change in Maryland sentencing guidelines which reduced the sentences of 23-25 year olds with juvenile delinquent records by 222 days.[i] This research showed that incarcerating each of these offenders for an additional year prevented 2.8 arrests per person. Most of these arrests are for drug offenses. The researcher then estimated that incarcerating these offenders an additional year would result in preventing 1.5 index crimes (murder, manslaughter, assault, robbery, rape, car theft, burglary, and larcency) per year.[ii]

This researcher concluded that her research showed estimates of reduced criminal behavior “an order of magnitude lower than those produced by previous studies of the incapacitation effect.” [iii] She further estimates that the additional cost to the State of Maryland for incarcerating one extra prisoner for one year to be in the range of $13,800 to $11,350. She then estimates that the social cost of crimes averted through an additional one year of incarceration to be somewhere in the range of $12, 500 and $26,000 per year. Therefore, she concludes that the costs of an additional year of incarceration to the State of Maryland is outweighed by the benefits of the reduced crime.[iv]

As I stated at the beginning of this entry, I am skeptical of the estimates of these types of studies. This study commendably defines the class of defendants it is studying, and confines the analysis to a period immediately following release. However, the complexity of reality is glossed over by the aggregation of data and the use of marginal costs of incarceration.

When it comes to incapacitation, the interesting question is not how a group of offenders, on average, will recidivate, but whether we can narrowly define the group, using quantifiable characteristics, to increase the accuracy of identifying those individual offenders most likely to recidivate. Those offenders most likely to recidivate are the offenders we should be more willing to expend public resources on for incapacitation in order to protect the public.

[i] Owens, Emily G. 2009, “More Time, Less Crime? Estimating the Incapacitative Effect of Sentence Enhancements” 54 Journal of Law & Economics 551, p. 551.

[ii] Ibid, pages 564-6.

[iii] Ibid., p. 567.

[iv] Ibid, pp571-3

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

August 16, 2010

Moral Luck and Criminal Punishment

Scenarios One through Five-Hundred: Imagine relatively deserted country roads at night, and drunk drivers, with no prior convictions for drunk driving, failing to stop at a stop sign at a blind intersection. No other car is in the intersection at the time. However, a law enforcement officer observes the entire incident. The drunk drivers are arrested for first offense operating while intoxicated—a non-criminal forfeiture action.

Scenario Five-Hundred and One: Imagine relatively deserted country roads at night, and a drunk driver, with no prior convictions for drunk driving, failing to stop at a stop sign at a blind intersection. In this scenario, another car enters the intersection. There is a violent collision, and the occupant of the second car is killed. The drunk driver escapes injury. The drunk driver is arrested for homicide by intoxicated use of a motor vehicle- a criminal charge with a maximum penalty of 25 years prison (15 years initial confinement and 10 years of extended supervision).

The single difference between scenarios 1-500 and scenario 501 is that someone was killed in the 501st scenario. The drunk driver in the 501st scenario was unlucky that a car with in the blind intersection when the drunk driver entered the intersection.

Drivers 1-500 got drunk and drove, and then failed to stop at a stop sign. One could argue that they were criminally negligent or reckless by driving drunk. (Is the difference between the levels of culpability a function of blood alcohol content?) They received a traffic ticket.

Drunk driver 501 did the exact same thing—got drunk and drove, and then failed to stop at a stop sign—but then, through the bad luck of having someone in the intersection at the exact moment they entered it, killed another person. Drunk driver 501, like drivers 1-500 above, arguably was criminal negligent or reckless by driving drunk. Driver 501 is looking at 25 years in prison.

The above example is an example of what philosophers call “moral luck.” [i] Driver 501 will be punished much greater than drivers 1-500 for similar behavior based on bad luck. The penalty differential between the two situations has often troubled me. Should it be troubling?

If one believes that the principal purpose of criminal sentencing is deterrence, then it probably shouldn’t be troubling. One sentences to deter others from similar behavior. Through a sentence, a message is sent to others about the cost of a particular crime, which is the amount of punishment. The expected punishment for drunk driving is the expected punishment for drunk driving not causing injury and death plus the expected punishment for drunk driving that results in injuries and death. Therefore, driver 501 is punished considerably greater because he, in effect, won the negative lottery, and therefore he has to bear the burden of the greater punishment to communicate deterrence of drunk driving to others. Is this proper? One commentator has written: “Fortune may make us healthy, wealthy, or wise, but it ought not determine whether we go to prison.” [ii] Drunk driver 501 is being used by the criminal justice system to send a message to others.(Is there an ethical limit as to how far one can use another individual as a means to an end? Ethically, should humans only be used as a end in themselves?)

If one believes that the principal purpose of criminal sentencing is protection of the public through incapacitation, then the sentence disparity makes little sense. There is no little reason to believe that the 501st drunk driver is any more dangerous to the public, requiring a longer period of incapacitation, than the first 500 drunk drivers. They are all equally as dangerous (this was a blind intersection so no argument can be made that the first 500 were more careful).

The sentencing disparity also conflicts with the deontological desert theory of punishment, and is probably one of the sources of my discomfort with the sentence disparities between the no harm/harm scenarios. According to this theory of punishment, one punishes in proportion to the evilness of the defendant’s will—a concept related to the mental state or mens rea of the defendant. We look to what the defendant’s mental state or will at the time of the offense. This view of moral responsibility is attributed most closely with the philosophy of Immanuel Kant, and I believe is consistent with many religious views. (I was imbued with this view through my Catholic upbringing, although Kant was Protestant.)

In this situation, all of the drunk drivers took a chance of harming another person through driving drunk. The chance of that behavior causing death was real, but remote. However, all 501 drunk drivers possessed the same evil will of risking injury or death to others by their behavior. The 501st drunk driver willed nothing different than the first 500 drunk drivers. Therefore, why should drunk driver 501 be punished more?

There is at least one important reason—to maintain the legitimacy of the law with the general population. In an excellent article on the differing conceptions of desert theory of sentencing, Paul H. Robinson explains that there are three difference versions of desert theory.[iii]

Robinson explains deontological desert which I discussed above. But then differentiates that with “vengeful desert” which “…urges punishing an offender in a way that mirrors the harm or suffering he has caused, typically identified as lex talionis: ‘the principal of law or retaliation that a punishment inflicted should correspond in degree and in kind to the offense of the wrongdoer.’” This type of desert focuses primarily on the harm and involves the victim’s desire for revenge.[iv] One could argue that assuaging these revengeful desires effectuates one instrumental reason for criminal punishment—preventing vigilantism. But few would argue that merely reflecting vengeful rage (or forgiveness) of the direct victim, should be the foundation of a society’s criminal justice system.

Robinson identifies another desert theory, “Empirical desert” which focuses on what empirical research has shown to be the community’s conception of justice for a particular crime. Empirical desert honors what research has discovered about what the community believes to be appropriate punishment for a crime. Respecting the public’s view of appropriate punishment is required to maintain respect for the criminal justice system which results in a law-abiding society.[v]

Oliver Wendell Holmes Jr. appreciated this purpose. As one commentator on Holmes’ view stated: “In a democracy, Holmes insisted, those who make, enforce, and interpret the law cannot move too far out of harmony with the common people, else the law will seem tyrannical at worst, obscure at best.”[vi] We must punish when, and to the extent expected, by the populace to maintain the legitimacy of the justice system.

Empirical desert provides a utilitarian purpose for the differential punishment under the above described scenario. As discussed in an earlier blog entry, punishment is probably hard-wired into humans, and that the desire to punish is triggered by harm, especially when accompanied by some form of blame-worthy behavior. The philosophical nuances of punishment may not be considered by much of the general public. How empirical desert weighs against deontological desert is one a judge must wrestle with at sentencing.

[i] See Kadish, Sanford H.; 1994. “Forward: The Criminal Law and the Luck of the Draw”, 84 J. Crim. Law and Criminology 4, pp. 679-702.

[ii] Richard Parker, Blame, Punishment, and the Role of Result, 21 AM. Phi. Q. 269, 273 (1984).

[iii] Robinson, Paul H. 2008, “Competing Conceptions of Modern Desert: Vengeful, Deontological, and Empirical”, Cambridge Law Journal, 67(1), March 2008, pp 145-175.

[iv] Ibid, p. 147.

[v] Ibid, p 149.

[vi] Feinberg, Joel, 1995 “Symposium issues in the Philosophy of Law: Participant : Equal Punishment for Failed Attempts: Some Bad But Instructive Arguments Against It.” 37 Ariz. L. Rev. 117, 125

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

August 14, 2010

Research Questioned

Perhaps an example of one of the reasons why research findings turn out to be incorrect?

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

August 9, 2010

Moral Processes

The criminal law makes distinctions regarding the moral culpability of an actor based upon the actor’s mental state or mens rea. However, in practice, it also punishes acts that result in greater harm more severely than those acts with less or no resulting harm. Research shows a psychological basis for some of the distinction.

Research into the development of moral judgment in children show that young children view the harm caused by an action as more important than the mental state of the actor when children make a moral decision. Something is bad if something bad happens—regardless of the intent of the actor. The relative importance of the result of an action and the intent of the actor switch as the child gets older.[i]

Recent research using both behavioral and brain imaging results reveals some insights on moral judgments.[ii] The study used 2 X 2 vignettes where 1.) the actor intended harm and harm occurred; 2.) the actor intended harm and was unsuccessful (an attempt at harm); 3. The actor didn’t intend harm but harm occurred; 4.) and the actor didn’t intend harm and no harm occurred.[iii]

First, subjects had to rate the moral acceptability of a situation from a range between being completely forbidden to completely permissible. As expected, actions performed with intent to harm were judged as more forbidden than those without the bad intent. Actions performed with no intended harm that did result in harm were judged as more forbidden than those actions where no harm was intended and no harm occurred. However, actions where harm was intended but where no harm occurred were judged as forbidden as a successful intentional harm.[iv]

The researchers then analyzed the brain scans of the subjects taken while being tested. The researchers were looking at various regions of the brain that had been identified as related to beliefs and cognitive conflicts. The researchers concluded that the brain scan results show the areas related to belief are most active during the situations where harm was intended but no harm occurred. Reaction time was quickest in situations where harm was intended and harm occurred—the situation that is most consistent.[v]

In situations were no harm was intended but harm occurred, the brain scans indicated that the areas related to cognitive conflict were active. The researchers concluded that in the cases of unintentional harm, participants had to override moral judgments, triggered by the harm, by using other cognitive mechanisms, to exculpate the unintentional actor. The researchers state “Moral judgment may therefore represent the product of two distinct and at times competing processes, one responsible for representing harmful out-comes and another for representing beliefs and intentions…..We suggest that a late-developing process for representing mental states together with an early developing process responsible for representing harmful consequences contribute to moral judgment in mature adults, and in some cases, the processes may interact competitively.”[vi]

Judges and others in the criminal justice system encounter situations where the moral culpability of an actor is relatively low, but the harm is great. These are some of the most difficult decisions, probably partially because of the conflict in these psychological processes, but also because a conflict with the objectives of criminal sentencing. I will discuss that in another entry.

[i] Young, Liane, Fiery Cushman, Marc Hauser, and Rebecca Saxe, 2007, “The neural basis of the interaction between theory of mind and moral judgment. PNAS, Vol. 104 No 20 pp. 8235-8240.

[ii] Ibid.

[iii] Ibid p 8236

[iv] Ibid p. 8236

[v] Ibid. p. 8239

[vi] Ibid p 8239

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

August 3, 2010

The Human Desire to Punish

Nietzsche counseled, “Mistrust all in whom the impulse to punish is powerful.”[i] Whether or not Nietzsche knew what he was talking about is one thing, but recent research confirms the apparent—the impulse exists.

John M. Darley, a Princeton psychologist, reviewed research on the desire to punish in a recent journal article.[ii] Darley writes that the desire to punish comes from intuitive processes that are fast, concurrent with other processes, automatic, and effortless—much like those involved in visual perception as opposed to a reasoning process. [iii] The intuitive process to punish often cannot be explained rationally by those experiencing the urge to punish, but can be overridden by the more deliberative reasoning process.[iv]

According to Darley, neural imaging studies confirm the existence of an immediate emotional response to punish and a separate slower, abstract reasoning process that can override the emotional response. Researchers have used “punishment games” and brain activation patterns to tease out what is happening, and found humans are rewarded by just-desert punishment. Darley writes: “The conclusion here is that humans find punishing norm violations in these experimental games to be a rewarding activity and are willing to spend resources to do so. No similar brain activity pattern was found when the punishment administered was only symbolic. Rewarding punishment needs to inflict actual pain.”[v]

Research further indicates that individuals are willing to pay to punish others who transgress against third parties even though there is no risk that the transgressor could harm that individual. This is called “altruistic punishment.”[vi] One research study provided proof that the human desire to punish is an effective mechanism to control transgressions within groups to the advantage of all in the group.[vii] Darley postulates that it is likely that the urge to punish may be an evolved trait that made group cooperation possible, but may also contain elements of learned behavior.[viii]

Darley cites research that indicates a rather close consensus among citizens about the rank ordering of different crimes.[ix] He writes that “Some rather preliminary evidence suggested that when citizens perceive that the law assigns punishments that conflict with their intuitions, they lose respect for the law.”[x] Darley discusses designing a system of justice that better integrates the human intuitive desire to punish and the rational determination of a punishment that includes such non-retributive goals such as rehabilitation of the defendant. He concludes that this endeavor would require further empirical exploration.[xi]

Judges sentence defendants on a daily basis. The proper integration of competing objectives is the essence of sentencing. Whether or not we always succeed in our efforts is another matter.

[i] Nietzsche, Friedrich, Thus Spoke Zarathustra, Viking Press, 1954, p. 100.

[ii] Darley, John M., 2009, “Morality in the Law: The Psychological Foundations of Citizens’ Desire to Punish Transgressions”, Annu. Rev. Law Soc. Sci. 5:1-23.

[iii] Ibid, p. 3.

[iv] Ibid p. 5

[v] Ibid p. 11.

[vi] Ibid p. 12.

[vii] Ibid p. 12; Gurerk O, Irlenbushch B, Rockenbach B, 2006, “The competitive advantage of sanctioning institutions.” Science 312:108-11

[viii] Ibid p. 15.

[ix] Ibid p. 18

[x] Ibid p. 16

[xi] Ibid p. 21

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.