Deterrence and Rational Choice Theories

These are the notes I have from my criminology class. This is the original paper.

• Classical criminology refers primarily to the 18th-century writings of Cesare Beccaria in Italy and Jeremy Bentham in England. Both were utilitarian social philosophers who were primarily concerned with legal and penal reform rather than with formulating an explanation of criminal behavior. In doing so, however, they formulated a theory of crime that remains relevant to criminology today.
  • The system of law, courts, and penalties of the day that the classical criminologists wanted to change was marred in most European countries by arbitrary, biased, and capricious judicial decisions. It was common to use torture to coerce confessions and to inflict cruel punishments; the classical criminologists were intent on providing a philosophical rationale for reforming the judicial and legal system to make it more rational and fair. 
    • They promoted reforms that many of the leading intellectuals of the day were advocating; their arguments also fit well with developing political movements seeking greater citizen participation and democratic control of the government. Many of the law reforms proposed by classical utilitarian philosophers, such as doing away with cruel and unusual punishment and instituting the right to a speedy trial, were incorporated into the United States Constitution. 

• The basic premise in classical criminology is that actions are taken and decisions are made by persons in the rational exercise of free will. All individuals choose to obey or violate the law by a rational calculation of the risk of pain versus potential pleasure derived from an act. 
  • In contemplating a criminal act, they take into account the probable legal penalties and the likelihood that they will be caught. If they believe that the legal penalty threatens more pain than the probable gain produced by the crime, then they will not commit the crime. 

• A legal system that is capricious and uncertain does not guarantee sufficient grounds for making such rational decisions. Such a system is not only unjust but also ineffective in controlling crime. To prevent crime, therefore, criminal law must provide reasonable penalties that are applied in a reasonable fashion to encourage citizens to obey rather than violate the law. 
  • The primary purpose of criminal law is deterrence. It should not be used simply to avenge the wrongs done to the state or the victim. The legislators enact laws that clearly define what is unlawful, prescribe punishment for law violation sufficient enough to offset the gain from crime, and thereby deter criminal acts by citizens. 
  • Judges should do no more than determine guilt or innocence and should use no discretion to alter penalties provided for by law. 
  • The punishment must “fit the crime.”

• To Bentham and Beccaria, fitting the punishment to the crime meant more than making the severity of the punishment proportional to the harm caused to society. It meant that the punishment must be tailored to be only severe enough to overcome the gain offered by crime. Punishment that is too severe is unjust, and punishment that is not severe enough will not deter. 
  • The amount of gain or pleasure derived from committing a particular crime is approximately the same for everyone. Therefore, making the punishment fit the crime stands in contrast to the punishment fitting the individual. The law should strictly apply the penalty called for a particular crime, and the penalty should not vary by the characteristics or circumstances of the offender. 
  • This argument also assumes that the more serious or harmful the crime, the more the individual stands to gain from it; therefore, the more serious the crime, the more severe the penalty should be to deter it. 
    • In classical criminology, this concept of proportionality meant that the legislature should enact an exact scale of crimes with an exact scale of threatened punishment, without regard to individual differences. This was later modified to consider that age and mental capacity may affect one’s ability to reason rationally.

• Punishment for crime must be swift and certain. Celerity of punishment refers to the swiftness with which criminal sanctions are applied after the commission of a crime. 
  • “The more immediately after the commision of a crime a punishment is inflicted, the more just and useful it will be…An immediate punishment is more useful; because the smaller the interval of time between the punishment and the crime, the stronger and more lasting will be the association of the two ideas of crime and punishment.” (Beccaria, 1972:18-19)
• Certainty of punishment refers to the probability of apprehension and punishment for a crime. If the punishment for a crime is severe, certain, and swift, the citizenry will rationally calculate that more is to be lost than gained from crime and will be deterred from violating the law. 
  • Certainty is more effective in deterring crime than severity of punishment. The more severe the punishment, the less likely it is to be applied; and the less certain the punishment, the more severe it must be to deter crime. 
• How deterrence is intended to operate:
  • First, apprehended and punished offenders will refrain from repeating crimes if they are certainly caught and severely punished. This is known as specific deterrence.
  • Second is general deterrence, in which the state’s punishment of offenders serves as an example to those in the general public who have not yet committed a crime, instilling in them enough fear of state punishment to deter them from crime. 

• The principles of certainty, severity, and celerity of punishment; proportionality; and specific and general deterrence remain at the heart of modern deterrence theory. The deterrence doctrine remains the philosophical foundation for modern Western criminal law and criminal justice systems. The most common policy reaction to crime problems is to call for increased penalties, more severe sentences, additions to the police force so more arrests can be made, and the increased certainty of conviction and sentencing. 
  • These trends are directly related to all the efforts by legislators to make criminal penalties more certain and severe, to reduce the recidivism of already punished offenders, and to deter new offenders. A policy of longer sentences, especially when selectively applied to habitual offenders, may also be based on the premise that imprisonment, even when it does not deter, will at least incapacitate offenders for a period of time. 

• Empirical research designed to test deterrence theory was rare until the late 1960s. Prior to that, most discussions of deterrence revolved around the humanitarian, philosophical, and moral implications of punishment rather than the empirical validity of the theory. 
  • Since 1970, deterrence has been one of the most frequently discussed and researched theories in criminology. 
• The first studies on deterrence consisted primarily of comparisons between states that provided capital punishment for first-degree homicide and those that had no death penalty. The early studies also examined homicide rates in states before and after they abolished capital punishment. These studies found that the provision or absence of the death penalty in state statutes had no effect on the homicide rate. 
  • More research since then has produced similar findings, and there is a consensus among leading criminologists that the death penalty has little general deterrent effect on homicide. 
• Deterrence research measures the severity and certainty of criminal penalties in two ways:
  • The first approach is to use objective indicators from official criminal justice statistics. The certainty or risk of penalty, for instance, is measured by the arrest rate (the ratio of arrests to crimes known to the police) or by the proportion of arrested offenders who are prosecuted and convicted in court. 
    • The severity of punishment may be measured by the maximum sentence provided by law for an offense, by the average sentence length for a particular crime, or by the proportion of convicted offenders sentenced to prison rather than to probation or some other nonincarceration alternative.
    • Deterrence theory predicts an inverse or negative relationship between these official measures of legal penalties and the official crime rate measured by crimes known to the police. When the objective certainty and severity of criminal sanctions are high, according to the theory, official crime rates should be low. 
  • The second approach is to measure individuals’ subjective perceptions of legal penalties. The objective threat of legal punishment means nothing if citizens are not aware of the official sanctions or do not believe that there is any high risk of penalty if they were to commit a crime. There is evidence that one’s perception of risk for violations is influenced somewhat by information regarding the objective certainty of sanction. 
    • Most people have a very limited knowledge of what the legal penalties actually are and often make very inaccurate estimations of the true odds of apprehension and incarceration. Ultimately, deterrence theory proposes that it is what people believe about the certainty, severity, and swiftness of punishment, regardless of its true risks, that determines their choice of conformity or crime. 
    • Most research on deterrence since the 1970s has used these perceptual measures, typically relating individuals’ perceptions of risk and severity of penalties to their self-reported delinquency and crime. The higher the risks of apprehension and the stiffer the penalties for an offense perceived by individuals, the theory predicts, the less likely they are to commit that offense. 
      • In addition, recent research has suggested that there may be a tipping point where the perceived risk of punishment deters crime only once a certain threshold is reached. 

• If there were no criminal justice system and no penalties provided by law for harmful acts against others and society, obviously laws prohibiting certain behavior would carry no threat for violation. Most people would probably still obey the law and refrain from predatory acts. A formal control system of laws and government is essential to social order in a modern political state. In this sense, the mere existence of a system that provides punishment for wrongdoing deters an unknown amount of crime. This effect of the chance of punishment versus no punishment at all has been referred to as absolute deterrence. 
  • However, absolute deterrence is not the relevant issue in deterrence research. Most people, most of the time and under most circumstances, conform to the law because they adhere to the same moral values as those embodied in the law, not because they are worried about imprisonment. 
    • Deterrence research attempts to answer: Does the actual or perceived threat of formally applied punishment by the state provide a significant marginal deterrent effect beyond that assured by the informal control system?
  • Studies of both objective and perceptual deterrence often do find negative correlations between certainty of criminal penalties and the rate or frequency of criminal behavior, but the correlations tend to be low. Even the weak effects of perceived risk of arrests on criminal and delinquent behavior are conditional upon one;s own moral attitudes, peer behavior, and other variables. 
    • Severity of punishment has an even weaker effect on crime, whether among the main body of criminal offenders or among a special category such as those convicted of white-collar offenses. 
    • With some exceptions, neither the existence of capital punishment nor the certainty of the death penalty has been shown to have a significant effect on the rate of homicides. 
      • Findings show that there is some deterrent effect from the perceived certainty of criminal penalties, but the empirical validity of deterrence theory is limited. 
  • The conclusion arrived at by the National Research Council committee regarding death penalty deterrence research is supported not only by the reports of single studies but also in meta-analyses of findings from many studies. 
  • Pratt et al. (2006) reported that “many of the variables specified in macro-level tests of the deterrence perspective-such as increased police size/police per capita, arrest ratios and clearance rates…were consistently among the weakest predictors of crime rates across virtually all levels of aggregation” (Pratt et al., 2006:368). 
    • Also their meta-analysis of studies that used perceptual measures found that, on average, there is no significant deterrent effect of perceived severity of legal punishment.
    • Further, the average deterrent effect of perceived certainty of punishment, although statistically significant, is fairly weak.
  • One reason for the weak evidence in support of deterrence theory may be that extent to which subjects in the research are deterrable to begin with. Pogarsky identifies three types of individuals: “acute conformists,” who comply with the law simply because it is right to do so; “incorrigible offenders,” who are so committed to crime that nothing would forestall them from engaging in it; and “deterrable offenders,” the only group for whom the threat of sanctions has the potential to dissuade them from crime. 
    • Jacobs (2010) expands on the notion of deterrability by conceptualizing it as risk sensitivity. Those who take certain precautions in the course of committing crimes, such as hiding their identity, choosing secluded places to engage in crime, and other efforts to evade detection, demonstrate high risk sensitivity and are therefore more deterrable than those who display low risk sensitivity. 

• Paternoster et al. (1983:471) concluded from their research that “the effect of prior behavior on current perceptions of the certainty of arrest, the experiential effect, is stronger than the effect of perceptions of certainty on subsequent behavior, the deterrent effect.” The more frequently respondents have been involved in law violations in the past, the lower their perceived risk of sanctions in the present. Paternoster et al. (1983) concluded that the relatively weak negative correlations between perceived risks of punishment and criminal behavior reflect this experiential effect of behavior on the perceptions of risk more than the deterrent effect of perceived sanctions on behavior. 
  • If respondents had previously committed offenses but had not been punished for them, the principle of specific deterrence would predict a subsequently low level of perceived certainty. Individuals who are involved in repeated crimes without suffering punishment should have lower perceptions of risk because they have gotten away with it so often. 
  • Specific deterrence is supposed to operate based on persons getting caught and punished for criminal acts. If they are not, the theory argues, then they will come to believe that the certainty of punishment is low. In this sense, then, deterrence theory predicts the very experiential effect that Paternoster et al. (1983) found. 
• It would be contrary to the principle of specific deterrence if the research had found that respondents who reported frequent offenses followed by arrests in the past still had perceptions of a low risk of criminal sanctions. 
• Piquero and Pogarsky (2002) found effects of both personal and vicarious punishment experience. Experience with punishment had an “emboldening effect”; that is, it was positively related to future offending. 
• Another aspect of the study by Paternoster (1985) points to the movement by many researchers to expand deterrence concepts beyond legal penalties. Paternoster included variables from social bonding theory and social learning theory. When these other variables are taken into account, the already weak relationship between the perceptions of risk of legal penalties and offense behavior virtually disappears. 

• Informal deterrence refers to the actual or anticipated social sanctions and other consequences of crime and deviance that prevent their occurrence or recurrence. This research has found that the perceptions of informal sanctions, such as the disapproval of family and friends or one’s own conscience and moral commitments, do have deterrent effects. They have more effect on refraining from law violations that the perceived certainty of arrest or severity of penalties. 
  • Zimring and Hawkins (1973) have argued that formal punishment may deter most effectively when it “sets off” or provokes these informal social sanctions. An adolescent may refrain from delinquency not only out of fear of what the police will do, but also out of fear of what his or her parents will do once they learn of his or her arrest. 
    • Williams and Hawkins (1989) expanded on this notion of the deterrent effects of informal sanctions that may be triggered by the application of formal criminal justice sanctions. They found in their study that the arrest of an abusing husband or boyfriend may have a deterrent effect, in part because of a concern over the negative reactions of friends, family, neighbors, or employers toward him based on their knowledge that he has been arrested. In this instance, fear of arrest may be a deterrent, not only because of the negative experience of the arrest itself but because of other negative consequences evoked by the arrest. 
    • Subsequent research by Nagin and Paternoster (1991b) does not support this argument, however, when it is applied to delinquency. They find a very small deterrent effect from the perceptions of formal sanctions, and this effect is not increased at all as a result of informal costs that may be related to the formal sanction. Instead, the informal sanctions have an independent effect on delinquent behavior that is stronger than the effect of perceived formal sanctions. Nagin and Pogarsky (2001) also find significant deterrent effects from informal consequences of behavior and propose a model of general deterrence that includes “extralegal” and legal consequences (along with the individual’s “present orientation”). 
• That the informal sanction system may be more effective in controlling crime than legal sanctions should come as no surprise. But does research evidence that informal sanctions on criminal and delinquent behavior have a deterrent effect on crime increase the empirical validity of deterrence theory? In our opinion, it does not. Deterrence theory refers only to the threat of legal punishment:
  • The proper definition [of deterrence]…is narrow. In a legal context, the term “deterrence” refers to any instance in which an individual contemplates a criminal act but refrains entirely from or curtails the commission of such an act because he or she perceives some risk of legal punishment and fears the consequences. (Gibbs, 1986:325-326).

• There is no room in deterrence theory for variations in the rewards for crime, the social consequences of actions, individual or group propensities toward crime, and a whole range of other variables. The question to be answered about deterrence theory is not whether punishment of any kind from any source deters but whether the threat of punishment by law deters. The more the deterrence theory is expanded to include informal sanctions and other aspects of the social environment beyond the law, the less it remains a deterrence theory and the more it begins to resemble other theories that already include these variables. It is more appropriate, therefore, to interpret positive findings on informal sanctions, weakened social bonds, and similar variables as supporting the other theories (e.g., social learning and social bonding), from which the variables have been borrowed, than it is to conclude that such findings support an expanded deterrence theory that includes these borrowed variables.