The Sentencing Project has a new report out that summarizes research on the effectiveness of criminal punishment as a deterrent. It’s nothing pathbreaking, but it does offer a nice, succinct statement of the evidence against robust deterrence effects. Here’s the conclusion:
Existing evidence does not support any significant public safety benefit of the practice of increasing the severity of sentences by imposing longer prison terms. In fact, research findings imply that increasingly lengthy prison terms are counterproductive. Overall, the evidence indicates that the deterrent effect of lengthy prison sentences would not be substantially diminished if punishments were reduced from their current levels. Thus, policies such as California’s Three Strikes law or mandatory minimums that increase imprisonment not only burden state budgets, but also fail to enhance public safety. As a result, such policies are not justifiable based on their ability to deter.
Based upon the existing evidence, both crime and imprisonment can be simultaneously reduced if policy-makers reconsider their overreliance on severity-based policies such as long prison sentences. Instead, an evidence-based approach would entail increasing the certainty of punishment by improving the likelihood that criminal behavior would be detected. Such an approach would also free up resources devoted to incarceration and allow for increased initiatives of prevention and treatment.
I’ll offer four reactions of my own.
First, criminal punishment does deter in the sense that people are less likely to commit crimes when you have a functional criminal justice system than when you don’t have one. But no one is seriously suggesting that we abolish the criminal justice system. The real question for policy debate is whether increasing the degree of punishment beyond what is already imposed for any given category of crime will reduce the incidence of that crime. Although there is intuitive appeal to the proposition that more punishment inevitably means less crime, the research provides little support for the proposition.
Second, if increasing punishment across the board for a category of crime (e.g., by adopting a mandatory minimum statute) cannot reliably produce future reductions in crime, then it seems even less likely that an individual sentencing judge’s decision to “make an example” of a particular defendant will reduce crime. When I hear of a judge imposing an unusually long sentence in the name of deterrence, this often strikes me as an act of extraordinary and ill-advised hubris. Rather than aiming for large-scale social effects, I would much rather see sentencing judges focusing on the individual human beings before them: the defendants, victims, and concerned family and community members.
Third, although I would generally discount deterrence in setting sentencing policy or making sentencing decisions in particular cases, it is possible that certain categories of crimes are more susceptible to deterrence than others. In particular, it is possible that economic crimes perpetrated by white-collar offenders do indeed involve the sort of rational cost-benefit analysis that deterrence theory depends on. In the federal system, there has been much effort since the 1980’s to move away from probation as the standard punishment for white-collar offenders and towards real prison time. I have not seen any research indicating whether initiatives along these lines may offer more deterrence benefits than, say, mandatory minimums for street criminals.
Finally, the Setencing Project report suggests, as many psychologists and criminologists have also done over the years, that increasing the certainty of punishment produces greater deterrence benefits than increasing the severity. Along these lines, I find it intriguing to contemplate a “grand bargain” between criminal law conservatives and liberals. Liberals would surrender the procedural rights for defendants that make conviction of the guilty less certain. Most clearly, I think, this would mean abandoning the Fourth Amendment exclusionary rule. Other candidates would include Miranda and Crawford. For their part, conservatives would give up mandatory minimums and life sentences. The result would be more certain, but less severe punishment. The payoff might be a criminal justice system that is both more humane and more effective at deterring crime.
Cross posted at Life Sentences Blog.
“Thus, policies such as California’s Three Strikes law or mandatory minimums that increase imprisonment not only burden state budgets, but also fail to enhance public safety.”
Even granting, for the sake of argument, a complete lack of increased deterrent from increased length of sentences, public safety is still enhanced from the simple benefit of giving criminals less opportunity to commit crimes while they are incarcerated.
“Along these lines, I find it intriguing to contemplate a “grand bargain” between criminal law conservatives and liberals.”
I thought about this a long time; it’s a tough concession to make, but the return from the other side would, I think, make it worthwhile. I’m curious how it would be effected though, as the conservative concession is controlled by legislatures and the liberal concession is controlled by the USSC.
Thanks for your comment, Tom — good points all the way around.
You may be correct regarding the incapacitation benefits of long sentences, although those benefits are less clearcut than you might think. The basic problem is that human behavior turns out to be less predictable than most of us intuitively think it is. So, the best models we have to predict recidivism are actually only correct about half the time. (To be more precise, about half the positives are false positives; the false negative rate is much lower.) The implication is that an incapacitation-based sentencing policy will result in prison terms for many people who do not actually need incapacitating. There are at least two problems with this from a public-safety perspective. First, prison terms can have crimogenic effects on inmates. Incapacitating a person who does not need incapacitation may thus cause an otherwise non-dangerous person to become dangerous. Second, the money for unnecessary incapacitation has to come from somewhere, and it is possible that it will be redirected from other purposes that do a better job of protecting public safety. For example, as prison populations grow, a corrections department may need to put more and more of its resources into basic, nondiscretionary activities (e.g., hiring more guards to maintain order and providing medical care for inmates), leaving less for discretionary services that have demonstrated recidivism-reducing benefits (e.g., treatment for drug and alcohol dependency). All that said, you may still be correct to the extent you are suggesting an incapacitation-based sentencing policy would produce greater net public-safety benefits than other policies (e.g., a desert-based policy) — it’s hard to be certain about the net effects of any social policy when there are so many moving parts.
As to how to effect the grand bargain, that is a real problem. I suppose the best way to do it would be through constitutional amendment. Far less satisfactory would be a deal on the Supreme Court: liberals could give away procedural rights, while conservatives could surrender their opposition to a robust proportionality requirement under the EIghth Amendment. There would be major legitimacy problems with proceeding that way, however.
Deterrence does not work. It never did. What does work is when our leaders comply with the law and set an example. Since 1980 we have had a steady stream of “leaders” who are little better than common criminals. Reagan and Iran-Contra, Clinton disbarred for perjury, Bush running wild committing so many crimes they can’t be counted (war crimes, torture, spying on Americans, political prosecutions, his list is endless). Closer to home, a notorious Milwaukee slumlord is County Board chair.
When people see their leaders have no respect for the law, they follow suit. In America, too many people get ahead by breaking the law. This is why America is in dire straights, people see their leaders have no respect for the law and question why they should comply. Good people will always comply, bad people only need a touch of motivation. It’s time we demand our leaders set an example and stop making excuses for criminal behavior by politicians.