On Punishment and Deterrence: How to Create More Victims
The question at the heart of criminal justice reform is, Do we want government to play a role in preventing crime, or simply to punish crime after the fact?
We all want to live in safe communities. But we have over-incarcerated our population, to the extent that incarceration itself has created problems. This should make us question our current path, and particularly the Vermont legislature’s stubborn insistence on criminalizing new behaviors and increasing penalties, when this approach is widely understood to be counterproductive.
The idea that punishment deters crime has been around a long time. The Romans are alleged to have used crucifixion, the Europeans public hangings, and the Puritans the stocks, all for the purpose of frightening others into good behavior, or at least into avoiding bad behavior. But in the last 150 years, criminologists have disagreed about the value of punishment. A great deal of evidence has made clear that for many people, the threat of punishment has no effect at all, for a variety of reasons: 1) Most people don’t expect to get caught. 2) Most people who commit crimes aren’t thinking about the consequence. (The answer to the parental question, “What were you thinking?” is of course, he/she wasn’t.) 3) For many, the possibility of getting caught and ending up in jail is an unavoidable risk, even a fairly predictable result of engaging in certain behaviors that may seem the only available options.
At the same time, there is some evidence that the threat of punishment does deter some people in limited circumstances. The threat of incurring shame is reputed to deter white collar crime. The threat of immediate, intense, short sanction appears to deter some low-level crimes (e.g. in Hawaii’s HOPE program).
However, there is absolutely no evidence that harsh or long sentences deter crime, and there is growing evidence that incarceration itself is criminogenic—that is, incarceration puts someone at greater risk of committing a crime than someone who has not been incarcerated.
Furthermore, as most people now know, the U.S. locks up people for much, much longer than other industrialized countries, where even those who commit murder are assumed to have an opportunity for rehabilitation after 12 or 15 years.
So why would the Vermont legislature continue to criminalize new behavior or increase penalties, when these tactics have little to no impact beyond increasing the costs of law enforcement, courts and corrections? Does anyone actually think making it a crime to cause someone “emotional distress” as proposed in H.818 will stop bad behavior? Or is the point rather to punish more people with criminal sanctions, which, by engaging them with the criminal justice system, increases their criminogenic risk—that is, their risk of victimizing others (and potentially the same people) in the future? And does anyone actually believe that increasing penalties for assaulting another category of worker as proposed in S.154 will prevent an assault? It seems much more likely that some legislators may like being able to say their efforts will prevent crime. Sadly, all this actually does is create longer sentences, with no benefit to victim or offender or society—and potentially result in more victimization.
Unfortunately, what such bills do accomplish is to allow the legislature as a whole to avoid the hard work of funding the community services that would actually prevent crime. Preventing crime requires addressing poverty, increasing access to mental health care and affordable housing, and – gulp – raising the necessary revenue to do so.
We all want fewer victims and less crime. It’s time we re-evaluate our retributive impulses, acknowledge that our current approaches do nothing to prevent crime, and begin investing in what does.