Ancient and modern societies created codes of conduct to control and direct their citizens, starting with the Cuneiform Codes, such as the Codes of Urukagina and Ur-Namu, which date to approximately 2350 B.C.E. These codes attempted to control corruption within government and criminality within the society by publicly posting the most common crimes and the punishments associated with the commission of those crimes. While many believe these codes to be largely focused upon retribution, these codes actually offered a large number of monetary punishments (fines) for violations.
Simple codes such as these can successfully control crime, but only if they are well known to the members of that society so accidental lawbreaking does not occur, and if the society remains homogeneous and structurally simple. Once that society begins to interact with neighboring societies with different norms, values, and beliefs, simple codes become less able to control deviant conduct.
Responses to Crime and Deviance Over Time
In ancient Western societies, codes of conduct relied upon punishments to control behavior. When crime became a greater concern, due to either the loss of overall public safety or the concerns of those who controlled the power to create laws, punishment severity increased. Likewise, as crime concerns diminished, punishments diminished in a similar manner. This pattern was repeated for centuries until a time in Europe known as the Enlightenment.
The Enlightenment (also known as the Age of Reason), broadly from 1650 to 1800, was known for its interest in scientific thought, the use of reason and philosophy to understand and correct social problems, and its belief in the value and dignity of all of humanity. During this period, several legal philosophers focused on the social problem of crime. These people noted that many persons were unknowingly committing crimes and entering the justice system. They were either unaware of the punishment or they were entirely unaware that their actions were criminal. Sanctioning these individuals not only was a waste of money, but also created a social problem because these “offenders” were not aware that their actions were illegal until after the crime had been committed. Would it not be better, the philosophers reasoned, to let the public know what is legal and illegal, and to let them know what the punishments for certain crimes would be? Crime could be better controlled if the government would create laws that could be understood by the typical member of society and if those laws and the corresponding punishments were posted in a public place to eliminate misunderstandings.
These suggested changes were not well received by the government for a number of reasons. First, governments had become accustomed to vague laws and punishments, which allowed them to create crimes and punishments as necessary to achieve political ends. Second, vague sentencing allowed the powerful to be convicted but not receive any punishment as punishments were not specified.
The church also disliked these philosophies. Christianity at that time favored the idea of predestination. This belief argued that behavior was preordained, and it was impossible to change a future which had already been determined. Punishment, or the threat thereof, would have no impact on future behavior, given that future behavior was already determined and would not change, regardless of the presence of laws and the threats of punishments. In order to have deterrence become a goal of the justice system and the government, the church had to adopt a more moderate doctrine and embrace the relatively new concept of free will. Over time, and motivated by the mounting failures and increasing costs of the justice system, these philosophical changes were accomplished. The Age of Reason and these Enlightenment philosophers began to alter the history of the justice system with this new concept known as deterrence. The goal had shifted to crime avoidance, rather than simple crime punishment. The question then became how best to accomplish this new goal.
The Classical School of Criminology developed during this period in history. While many theorists, philosophers, and practitioners were involved in this process of social development, the two names most commonly associated with this movement are Cesare Beccaria in Italy, and Jeremy Bentham in England.
Cesare Beccaria was an Italian nobleman deeply interested in the reform of the criminal justice system. This was an unusual interest, in that the nobility had long labored to maintain the status quo, which supported their power base and made them less subject to the laws and the punishments associated with breaking those laws. Beccaria, in his 1764 book An Essay on Crimes and Punishments, offered suggestions and ideas to make the justice system both more effective and more just. He advocated a system of law that applied equally to all, abolished the death penalty, created a system that was deterrence based, provided public notification of offenses, held public trials, and valued the certainty of punishment over severity. Beccaria believed the justice system needed to be more sensitive to the severity of the offense and offer punishments that went beyond the typical corporal and capital punishments of his day. He believed that severe punishments given for less severe offenses did not deter, but rather weakened the justice system in the eyes of the public.
Beccaria’s ideas were not entirely well received, but his status as a nobleman protected him from the backlash that would have accompanied such suggestions had they been made by a commoner. It has been suggested that his fellow reformers (Alessandro and Pietro Verri) desired that the book have only his name listed as the author because his noble status would both increase the notability of the book and decrease the chances of political repercussions.
The second of these classical scholars is Jeremy Bentham. Bentham sought to undo the relationship between crime and spirituality, or demonic influences, by viewing the criminal as a rational, decision-making individual. Bentham developed the idea of the hedonistic calculus, which claimed that humans were rational thinkers who balanced the pleasure of an act with the pain it could generate. Specifically, he believed that criminals could be deterred and crime controlled if the punishment for the crime was greater than the benefits (assuming a reasonable probability of detection and a swift court process). Class divisions were strong in Bentham’s England, and his goal was to eliminate the differences and disparities experienced by members of the lower classes and have a single system of law that applied to all, with equal and consistent justice.
Deterrence in Practice
Deterrence is a relatively simple concept, but the elements that create effective deterrence are quite
complex and difficult to predict. The classical criminologists determined that deterrence really only requires three elements: certainty of punishment, severity that is greater than the benefits received from the crime, and swiftness of punishment so that the offender associates the conduct with the response. These are simple elements, but difficult to achieve in a society without unlimited resources and with a desire to not limit freedoms unnecessarily.
Of these three elements, certainty is without question the most important, and severity is historically viewed as the least important. Unfortunately, severity is the easiest to enhance, and certainty is the most difficult to create. To create true certainty, societies would have to have law enforcement officers, or other agents of the criminal justice system, constantly follow and record the behavior of each member of the society. Furthermore, given that law enforcement officers have been known to break the law as well, they would also require supervision. Since this is not a situation that is in any way feasible, societies have historically relied on increased severity to control criminal behavior.
As social complexity driven by increased diversity occurred in many societies, deterrence became even more unsuccessful. It was difficult to determine how much pleasure a person would experience from a crime, and therefore it was equally difficult to determine the appropriate punishment for a criminal act. Furthermore, as economies regularly experience shrinkage and recessions, the motivation to commit crimes for survival increases to the point where offenders simply cannot be deterred. Deterrence requires that the individual have free will, but it also assumes rationality, and when one is starving or in need of medication, rational thought and the hedonistic calculus may not apply.
The inability of deterrence to completely control crime resulted in a reevaluation of the goal of crime control and a reexamination of the causes of crime. Those who worked in the corrections and law enforcement areas noted that many offenders were committing crimes that were the result of underlying causes that were correctable. Poverty and substance use and addiction were found to be at the root of many social problems and much criminal conduct. Deterrence did not address these causes and, consequently, it could not control the resulting crimes.
This failure to control crime resulted in two changes to the justice system. The first was to conduct additional research on deterrence to determine if there were something that could be changed to increase crime control. The second was a move away from deterrence as a goal and the creation of a new goal: the reform of the offender.
The Reform Movement
Reform was similar to deterrence in a number of ways. It was an intellectually sound idea, it was a more just response to crime than what had been tried previously, and it was also difficult to achieve. Unlike deterrence, reform was prohibitively expensive, and the often high-profile failures made the public question the legitimacy of the treatment process. As the reform movement waned, society was again looking for a solution to the problem of crime and a way to maintain public safety. Deterrence had not worked, and reform was both ineffective and expensive. The solution was to return to the basic principle of separating the criminal from society through the use of incapacitation.
But the understanding of deterrence had also improved during the reform era, and there was now a better understanding of the different aspects of deterrence.
General, Specific, and Marginal Deterrence
Early deterrence theorists recognized that it would be difficult to assess the motivation for some individuals. So, general levels of punishment were calculated based upon typical members of that society. These levels of punishment were known as general deterrence levels, and they were designed to keep already law-abiding persons from breaking the law. Later theorists learned that it was not just the punishment, but also the fear of an unknown punishment, that controlled crime. Once a person had experienced the punishment process, the fear of the unknown was replaced with a real experience with a lower deterrent effect, making the offender more difficult to deter. As such, this individual would require more potential punishment in order to control his or her potential criminal conduct. This became known as specific deterrence, which implied punishment levels designed to control the behavior of individuals who had already experienced punishments within the justice system.
Theorists further recognized that punishments sometimes did not match the benefit received by the commission of the crime; the justice system punished individuals whose theft amount was $1,000 in much the same way it punished someone whose theft amount was $1 million. This realization prompted theorists to suggest that punishments be sufficient to deter, but not so severe that they encouraged offenders to commit a more serious crime. This was a problem when both rape and murder were punished with death. This made the rapist consider killing the victim in order to eliminate a witness because the more severe crime of murder carried the same punishment as rape. This became known as marginal deterrence, because the goal was to use punishment to both deter crime and to encourage the least severe crime through a sliding scale of punishments.
Ethical Issues in Deterrence
Because deterrence is difficult to achieve due to the weakness in certainty, policy makers attempt to compensate by increasing sanction severity and being “tough on crime.” This has resulted in some noteworthy legal developments, such as mandatory sentences for certain offenses, three strikes laws for repeat offenders, and sentencing enhancements designed to control certain types of criminal conduct.
These changes raise some interesting ethical issues. Are they just to over punish some high-profile offenders in a public way to deter potential offenders, and does this violate the right to privacy? From the perspective of a deterrence theorist, public punishment makes the members of that society aware of punishment for that offense. Punishment, however, can be viewed as a private relationship between the individual and the justice system, and holding that individual up for public scrutiny in order to achieve deterrence may be both unethical and unjust.
Bibliography:
- Loughran, T. A., G. Pogarsky, A. R. Piquero, and R. “Re-Examining the Functional Form of the Certainty Effect in Deterrence Theory.” JQ: Justice Quarterly, v.29/5 (2012).
- O’Connell, D., C. A. Visher, S. Martin, L. Parker, and J. Brent. “Decide Your Time: Testing Deterrence Theory’s Certainty and Celerity Effects on Substance-Using Probationers.” Journal of Criminal Justice, v.39/3 (2011).
- Piquero, A. R., R. Paternoster, G. Pogarsky, and T. “Elaborating the Individual Difference Component in Deterrence Theory.” Annual Review of Law and Social Science, v.7 (2011).
- Rizzolli, M. and L. Stanca. “Judicial Errors and Crime Deterrence: Theory and Experimental Evidence.” Journal Of Law and Economics, v.55/2 (2012).
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