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"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

September 4, 2010

Why Deterrence Has Minimal Impact

In my last entry, I discussed the empirical research regarding the efficacy of deterring crime through increased sentences, as opposed to preventing crime through incapacitation from increased sentences. I want to discuss the psychological research as to why deterrence is not very effective.

Paul H. Robinson of the University of Pennsylvania Law School and John M Darley, a psychologist at Princeton, discuss what the research says about the ability to use increased punishment to deter crime.[i] First, to be clear, no one is arguing that eliminating punishment for crime would not result in all sorts of problems. These researchers, as well as myself, believe that a functioning criminal justice system that applies appropriate punishment for criminal acts is required for a functioning society. The only question that is being examined is the ability to deter crimes by increasing punishment for that crime, given the crime is already being punished.

Deterrence theory posits that individuals undertake a cost-benefit analysis before a crime is committed. If the perceived benefits exceed the costs, the crime is committed, if not, the crime is deterred and not committed.

Robinson and Darley discuss their research showing that while individuals have an intuitive feeling of what is wrong, they do not know the nuances of what is and is not legal within the individual’s jurisdictions.[ii] They also discuss another study of incarcerated felons. Twenty-two percent of these felons knew what the punishment would be for the crime, 18 percent either had no idea what the penalty was or thought they knew but were wrong, and 35 percent didn’t even think about the penalty.[iii]

Robinson and Darley also argue that the research shows that individuals that involve themselves with crime are less inclined to think about the consequences of their actions, be risk takers, and are more impulsive than the average person. Further, alcohol and drug use alter these individuals ability to make rational decisions. Superimposed on these qualities of an offender are often temporary states of mind such as the desire for revenge, rage, paranoia, and other mental illnesses or disorders that do not rise to the level of a legal defense. [iv]

The authors of this article also explain that crimes are often committed with other individuals creating an arousal effect, and that group decisions and actions increase the risk-taking of the individuals in the group over what they would do individually.[v]

Robinson and Darley further discuss the research on the perceived cost of crime by criminals. First, conditioning research would say that changing behavior through punishment is difficult if not impossible at low rates of punishment. For example, research shows that a ten percent punishment rate results in no reduction in the behavior. If crime is not being detected and punished at a high rate, the behavior will be difficult to deter.[vi] Further, research has shown that people regularly over-estimate their ability. Criminals will probably under-estimate the likelihood that they will be caught and punished.[vii]

These researchers also discuss that the amount of punishment is not likely to deter. They discuss a study in which graduated punishment results in the necessity to inflict large amounts of punishment to obtain deterrence. Robinson and Darley suggest that this research implies that by punishing first offenders lightly, we may be reducing our ability to ever deter these individuals, as they have learned to tolerate punishment. [viii]

Robinson and Darley also discuss research regarding the “hedonic-treadmill”. That discussion deserves a separate blog entry itself.

[i] Robinson, Paul H., and John H. Darley, 2004, “Does Criminal Law Deter? A Behavioral Science Investigation”, Oxford Journal of Legal Studies, Vol. 24, No 2, pp. 173-205.

[ii] Ibid., p 175-76

[iii] Anderson, David (2002) “The Deterrence Hypothesis and Picking Pockets at the Pickpocket’s Hanging”, 4 Amer. Law and Econ. Rev. 295

[iv] Ibid, p 179.

[v] Ibid. p. 180.

[vi] Ibid. pp 183-84.

[vii] Ibid p. 185.

[viii] Ibid. p. 186.

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.

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