A prime purpose of punishment has long been to deter future illicit behavior. Deterrence works on two levels. Specific deterrence occurs when an individual is punished for wrongdoing, and learns the price of misbehavior. General deterrence affects the population at large who observes the fact that misbehavior leads to punishment. Another possible result of punishment that achieves the opposite effect is labeling, whereby the wrongdoer's life is irreparably damaged by the experience of punishment. Not all individuals or populations respond to deterrence in the same way. Domestic violence offenders, white collar criminals, juvenile delinquents and capital murderers all present unique ways to consider the validity of the deterrent effect.
Keywords Browning-Ferris Industries; Inc. v. Kelco; Criminogenic Effect; General Deterrence; Labeling; Punishment Avoidance; Punitive Damages; Recidivism; Roper v. Simmons; Specific Deterrence; Subjective Utility Theory
Punishment is not inflicted by a rational man for the sake of the crime that has been committed—after all one cannot undo what is past—but for the sake of the future, to prevent either the same man, or by the spectacle of his punishment, someone else, from doing wrong again. —Plato, Protagoras (in Stolzenberg & D'Alessio, 2004, p. 351)
It has long been a source of speculation: just what effect does punishment have on an individual's behavior? As far back as the end of the 19th century, Durkheim posited that the "pain of punishment" would deter offenders from repeating their behavior, especially when the "punishment is swift, certain and severe" (Sherman & Berk, 1984, p. 261). More recent theorists take the opposite tack: punishment serves to make recidivism more likely, as all aspects of the offender's life are altered, and legal avenues for obtaining employment are shut. Sherman and Berk wisely speculate that there is no one effect of punishment; responses vary by personality, but also by the type of offense. They argue that white collar criminals, juveniles, drug dealers and violent offenders all present very different profiles.
In "Punishment and the Spirit of Democracy," Kateb argues that the justifications for state inflicted pain—whether corporal or not, he sees all punishment as pain—deserves far more serious consideration. The arrest and punishment of criminals has long been considered a core function of the state. He finds this troublesome in a constitutional democracy; no longer should mere sovereignty be an adequate justification for punishment. He believes there should be a reluctance to inflict the pain of punishment in a democracy, with the principle justification being that it can serve as deterrence. It is not that wrongdoing deserves to be answered with pain, but that the pain serves to deter (Kateb, 2007).
Subjective Utility Theory
Economists have long used the subjective utility theory, which assumes that individuals work toward their own self-interests, and attempt to maximize opportunities. Other social scientists have seen the usefulness of this theory for disciplines beyond economics. It can be applied to the study of deterrence:
[I]ndividuals assess the net utility of engaging in a prohibited behavior by weighing the expected gain against the expected punishment, with the latter weighted by the certainty of being caught and discounted by time to receipt of punishment (Schneider & Ervin, 1990, p. 586).
The public at large has "amazing faith" in the idea that criminal behavior will be curtailed if only the law spells out certain and severe consequences (Schneider & Ervin, 1990, p. 586). Schneider and Ervin argue that empirical evidence does not uphold this "faith" as criminals' behavior seems to operate outside what should be their own self-interests.
Types of Deterrence
Generally, deterrence is understood to operate in two distinct ways. General deterrence works on the population at large; the punishment of one wrongdoer serves as an example to all of society about the cost of misbehavior. Specific deterrence is aimed at the individual; once the law has been violated, and the consequence realized, that individual should have a new and enhanced understanding of the personal cost of illegal behavior. In 1993, Stafford and Warr brought these two strands together, combining and redefining them:
- Specific deterrence—directly experiencing punishment and punishment avoidance
- General deterrence—experiencing punishment and punishment avoidance indirectly when others are punished (cited in Sitren & Applegate, 2007, p. 31).
In this way, they move beyond the notion that distinct populations experience one or the other form of deterrence; rather, everyone is encapsulated in both types of deterrence. Further, they suggest that there has been insufficient focus on punishment avoidance behaviors, suggesting this mindset might do more "to encourage crime than punishment does to discourage criminal behavior" (Sitren & Applegate, 2007, p. 31); as individuals watch others commit crimes and escape punishment, the Durkheim notion of "certain, swift and severe" consequences diminishes.
When considering the purpose of punishment, it is critical to understand what factors lead into criminal behavior. A school of criminologists believes that some portion of the population has a "constant and unchanging criminal propensity." Thus those who have committed crimes at one point in their lives are more likely than non-offenders to repeat the criminal behavior. They have a "population heterogeneity perspective," recognizing that antisocial behavior will manifest early in life, and the pattern will continue to repeat (Bhati & Piquero, 2007, p. 213). If this view is accurate, punishment should be used only as retribution and incapacitation, but not as a deterrent, since the individual has a 'propensity' toward crime. Nagin and Patermoster suggest that there is also a factor of contagion; once the offense has occurred, the offender's life circumstances take such a turn for the worse that future crime becomes more likely. Bhati and Piquero consider the evidence on criminal propensity to be quite persuasive, but see room for the contagion model as well. Nagin and Paternoster argue for additional research on influence incarceration plays on the relationship between past and future crime (Bhati & Piquere, 2007).
Incarceration has been the central strategy in the United States for crime reduction since 1980. In 1980, just fewer than 2 million people were in the criminal justice system—probation, incarcerated, or paroled. By 2004, the number exceeded 7 million; this equaled 2.3% of the population. The theory behind incarceration is that it "takes a slice out of an individual career" (Bhati & Piquero, 2007, p. 208). This high level of incarceration leads to one of three possible outcomes: a criminogenic effect, in which subsequent crime activity increases; a deterrent effect, leading to a decrease in future criminal activity or a null effect. Bhati and Piquero argue that it is critical to understand the impact of various corrections programs to develop strategies "that minimize any criminogenic harm and maximize any deterrent benefits that result from it" (2007, pg. 209). They suggest that the impact of incarceration in the aggregate has received far more study than the impact on the individual.
The "classic perspective" of crime holds that "swift, certain and severe punishment" will serve to dissuade individuals from crime; once the individual errs and is punished, the memory of the sanction will be an effective deterrent. Research on the specific deterrent effect of punishment on "subsequent criminal activity is not conclusive, though [it] tends to suggest that the certainty of punishment exhibits a small but significant deterrent effect" (Bhati & Piquero, 2007, p. 211). An alternative point of view suggests that instead of punishment serving as a deterrent, it instead leads to "labeling," which in turn leads to ongoing criminal behavior. The offender becomes labeled as a delinquent or criminal; this label is internalized, and makes it more difficult for the individual to opt for more acceptable pathways. Bhati and Piquero suggests that like the research on deterrence, the research on labeling is less than conclusive, although there does seem to be an "indirect labeling effect" (2007, p. 211).
Laub and Sampson completed a longitudinal study on 500 Boston area delinquents, looking at the impact incarceration had on job stability; they found a lack of job stability had a positive correlation with subsequent criminal activity. A key theme that emerged from the interviews with these men was that most found the entire system corrupt and disinterested in helping them find a new pathway. Prison was a place to "toughen up," serving as no deterrence at all. For some, there may even have been a criminogenic effect, for they spent their time in jail without job training or any other services that may have lead to future employment (Bhati & Piquero, 2007).
Domestic violence offenders are a group that offers a unique chance to study the dispute between the specific deterrence and labeling understandings of the impact of punishment. By the early 1980s, feminists were pushing police departments across the country to move beyond merely separating violent partners and to use their power to arrest to stop what...
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