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Principles of sentencing - deterrence
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Home > Lecture notes >  English Legal System >  Sentencing - principles >  Principles of sentencing - deterrence 

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Deterrence

Punishment deters

A more traditional explanation of the function of the criminal law is that the threat of punishment for violating that law operates as a deterrent.

 

Unlike the idea of utilising the criminal law to reaffirm social values (often called 'educative deterrence'), the threat of punishment operates here at a conscious level, inducing people to refrain from crime.

 

Deterrent punishment can operate in one of two ways.

Against the individual

With individual deterrence the hope is that the offender being punished will find the experience so unpleasant that he will not re-offend.

 

It is extremely difficult to test how true this is. Statistics as to the number of offenders not re-convicted (and who might therefore have been deterred as a result of their previous punishment) are of limited utility unless one knows why they did not re-offend (and what percentage did commit further crimes but were not apprehended).

 

General deterrence.

With general deterrence the punishment of the offender is aimed at the public at large in the hope that the example and threat of punishment will deter them from crime.

 

This operates in two ways.

First, regular and normal levels of punishment keep the constant threat of similar punishment alive.

Secondly, in the past courts have occasionally passed 'exemplary sentences'. These are disproportionately severe penalties usually imposed when a particular type of activity is on the increase.

 

For instance, concern over the rise of football hooliganism led to the exemplary sentence of life imprisonment for riotous assembly outside a football ground in Whitton (1985)  - (a sentence reduced to three years' imprisonment on appeal, Whitton (1986).

 

Are people deterred from committing crime by punishment?

The theory of general deterrence rests entirely upon one assumption - that people are in fact deterred from committing crime by the threat of punishment.

 

It is crucial therefore that the public know about punishments being imposed. Such publicity is most easily obtained when exemplary sentences are imposed (but is probably counterbalanced by the extensive coverage given to the occasional 'lenient' sentence - as when a rapist is put on probation (now a Community Rehabilitation Order)).

 

News media coverage of 'normal' punishments is far more selective and mainly confined to local papers - and even there it is the circumstances of the offence and the identity of the offender that attract most attention (Walker, 1985).

 

Evidence shows deterrence works.

There are several celebrated examples purporting to demonstrate the effectiveness of deterrent sentencing.

 

For instance, in 1919 the police went on strike in Liverpool. With the chances of apprehension significantly reduced, the crime rate (especially looting of shops) escalated sharply.

 

Similar results occurred when the Nazis occupied Denmark in 1944 and arrested the entire police force; the general crime rate rose sharply and immediately.

 

Economic model - deterrence

Much of the research on deterrence has been based on an economic model. The potential criminal is seen as a rational calculator who balances the costs and benefits of his possible actions.

 

The 'costs' include the probability of apprehension, the severity of punishment, the ease with which the crime can be committed, chances of success, etc., while 'benefits' refer to the satisfaction, whether monetary or otherwise, to be derived from the crime.

 

Feeding in other variables such as income, earning potential, environment, taste, employment status and education level, the thesis is that a person will only commit a crime if, according to his evaluation, the benefits will outweigh the costs (i.e. there is a net utility to be derived), and if this perceived utility exceeds that he could derive from alternative, lawful activities.

 

Becker economic calculation

Becker (1968), in a pioneering article, hypothesised that an offence, O. could be expressed as the function

 

O = O (a, f, a)

where
p is the probability of conviction,
f is the expected punishment and
u is a composite variable representing all the other influences.

In order for deterrence to be effective and crime to be reduced, the costs must be made to outweigh the benefits. Increasing the probability of conviction or the severity of the punishment would make the prospect of crime less attractive and induce the individual not to commit crimes.

 

As p, f and u are all functions of 0, albeit without precise values, it follows that crimes with low detection rates would need correspondingly higher penalties.

 

The importance of the other variables must not be forgotten. For instance, if education could be increased and unemployment reduced, the utility to be gained from lawful employment might outweigh that to be derived from crime.

 

Ehrlich, increase in likelihood of detection and punishment reduces crime.

Several empirical studies based on this economic model of crime have been carried out and indicate some support for the thesis.

 

For instance, Ehrlich (1973) found that a 1 per cent increase in p (probability of conviction) was associated with a crime reduction of 0.99 per cent, and a 1 per cent increase in (expected punishment) was associated with a crime reduction of 1.12 per cent.

 

Do criminals 'think' before acting?

Such an economic analysis of criminal motivation and the entire theory of general deterrence is based upon an assumption that people are always rational and think before they act.

 

They are 'rational utility maximises', which means that prospective gains and losses are weighed against each other with decisions and choices being based on such a calculus. While this might be true of some individuals and some crimes (for instance, one might rationally calculate the gains and losses in parking on a double-yellow line), it is clearly not true of all individuals and crimes.

 

Many crimes (particularly those involving violence) are often committed by persons in highly emotional states who are acting in an exceedingly irrational manner. The man who, in a fury, beats his wife to death is hardly a 'rational utility maximiser'; his motivation is anger, jealousy, love, hate or whatever and he is simply not amenable to deterrence at that point.

 

Similarly, many other persons are not deterrable: the mentally disordered, the intoxicated, the addict, etc. The criminal law might have some effect with some of such persons in inducing some care in the commission of the crime - for instance, a drug addict might not purchase drugs right in front of a policeman - but it will never deter him from committing the crime altogether.

 

Prospect of detection affects actions.

Deterrence can only be effective if people think that there is a reasonable prospect that they will be caught. A couple wishing to inflict minor sadomasochistic injuries on each other in their own home are hardly going to be deterred by the threat of imprisonment. They know that they will not be apprehended and so will not be deterred. (See The Spanner Trust for information about promoting sado-masochistic rights.)

 

A large numbers of crimes are never reported to the police or recorded by them and that overall only about 2 percent of offences committed result in a criminal prosecution.

 

The old adage appears true: crime pays; the criminal's chances of not being caught are far higher than those of being apprehended.

 

Further, if one examines the clear-up rate per offence (again, of those recorded by the police) one discovers that generally the offences for which one is most likely to be apprehended (homicide - 95 per cent; violence against the person - 76 per cent; sexual offences - 75 per cent) are those that are often committed impulsively or by persons not amenable to deterrence while the clear-up rate for crimes more likely to be committed 'rationally' is even lower than the general average (burglary - 20 per cent).

 

The value of clear-up statistics.

Of course, in assessing the efficacy of deterrent punishment, the actual statistics on clear-up rates are not helpful unless the prospective criminal is aware of them.

 

What matters is the individual's assessment of his prospects of apprehension. If he thinks there is a 95 per cent chance of being caught if he burgles a house, then he will probably be deterred and it is irrelevant that his assessment of the risk is hopelessly awry.

 

There are no reliable statistics on this. Willcock and Stokes (1968) discovered that the young persons they surveyed tended to overrate their chances of detection.

 

However, while many persons might be overcautious in their estimate of the risks, it would not be unreasonable to assume that many others will think they are 'too smart' to get caught - and once they start committing crimes they will become part of the statistical pattern; their assessment of the risks will become more accurate and, knowing the truth, they will be less likely to be deterred.

 

Walker "Some Theory"

Apart from the anecdotal, it is difficult to obtain clear evidence as to the deterrent effect of sentencing (Beyleveld 1980).

 

Judges, perhaps in desperation, continue to have faith in the deterrent impact of their sentences.

Parliament has however become more sceptical.

 

The Criminal Justice Act 1991 and, particularly, the Government White Paper (1990) preceding it has largely eschewed deterrence as a major goal in sentencing.

 

Perhaps the most realistic view is that expressed by one of the leading penologists in Britain, Walker (1985), who concludes that 'some people can be deterred in some situations from some types of conduct by some degree of likelihood that they will be penalised in some ways.'

 

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