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Justice, Punishment, and Deterrence

Philip J. Cook

• Duke University

“Punishment and Crime: A Critique of Current Findings Concerning the Preventative Effects of Punishment.” Law and Contemporary Problems 41 (1977): 164–204.

This critique aims to be a fairly comprehensive survey of the literature concerning the effects of the criminal justice system on crime. First, it discusses studies of the “special effects” of punishment, that is, the effects of punishment upon individual felons. Next, it analyzes recent efforts to study the general deterrent effects of criminal sanctions.

Prison sentences have traditionally been held to have two purposes regarding the convicted felon: rehabilitation and incapacitation. Since World War II, substantial effort and experimentation have been directed at reducing recidivism through rehabilitation programs. With few exceptions, however, these programs have failed. These failures have significantly disillusioned the criminal justice system with the rehabilitative model and indeterminate sentencing.

Interestingly, little support exists for the following arguments that seek to prove how imprisonment increases the crime rate: (1) it stigmatizes inmates and thus makes it harder for them to support themselves legitimately when released; (2) it improves the inmates' crime skills; and (3) it causes them to accept criminal norms of behavior. Further, Ernest van den Haag's studies indicate that even if a felon ceases his crimes against the public through the incapacitation and rehabilitation of imprisonment, there may be no corresponding change in the overall crime rate. Some kinds of crime may be limited more by the number of opportunities available to commit a crime than by the number of individuals willing to commit it. Thus, on van den Haag's analysis, the incapacitation or rehabilitation of one offender may only disrupt the supply of, say, drugs and create an opening for someone else to enter the “business.” As a result, even if incarceration reduces crime by psychopaths, for example, the rates for other types of crime designed to enrich the criminal may not be strongly affected in the long run by incapacitation alone.

Economists have recently studied the general preventative effects of criminal sanctions. They approach crimes as a kind of entrepreneurial activity by felons. Likewise, they view criminal sanctions as a kind of tax on criminal activity. Given this economic model of criminal activity, economists generally expect that crime rates will decline if the law increases the severity of the “tax.” The law may also improve the effectiveness of arrest, reduce the “payoff” to a given crime, or point out an increase in legitimate economic opportunities. Within the economic model, then, the criminal functions as a rational decision maker.

Another, perhaps complementary, model for studying crime deterrence focuses on the socialization of society's members through the criminal justice system. This approach generally regards law-abiding behavior as habitual. An effective criminal justice system (i.e., one that effectively enforces the laws) cultivates this “habit,” whereas a mild or ineffectively applied system of criminal sanctions fails to provide people with incentives for developing the habit of being law-abiding. Most studies rely on the foregoing models for purposes of analysis.

Two kinds of empirical research have been devoted to general deterrence. The first covers statistical correlations between the relationship of criminal sanction “threat” levels to crime rates across jurisdictions or over time. These often have supported the claim that a high probability of punishment inhibits crime rates. To a lesser extent they have also correlated the severity of punishment with general levels of deterrence. But questionable methodology weakens these studies' conclusions as to the strength, or even the existence, of any deterrence mechanism. Among the methodological flaws are inadequate or inaccurate crime statistics; failure to control other crimogenic factors which may distort the deterrence effect; and failure to distinguish adequately the deterrence process from other processes. This last flaw may cause threat levels from criminal sanctions to be negatively related to crime. All the flaws vitiate the usefulness of these studies.

The second kind of empirical research involves “quasi experiments.” These are sudden changes in the law or enforcement policy which may alter the public's perception of the certainty or severity of criminal sanction for some criminal offenses. Despite their lacking the generality of the correlations, such studies offer some evidence that changes in the crime rate arise from changes in the threat level of the criminal justice system.