The first two posts in this series are here and here.  In this concluding post, I will share some thoughts regarding the various mechanisms by which criminal law potentially enhances social trust.

Deterrence: The criminal law’s deterrent threats help to make people feel more secure.  It seems to be a matter of widely shared intuition, and not without basis, that the possibility of punishment will cause many individuals to think twice before harming or endangering others.  The difficulty with deterrence is this: just because the threat of some punishment tends to reduce the frequency of undesirable conduct or outcomes does not mean that the threat of more punishment will achieve further gains.  

Whenever there is a high level of public concern about some sort of crime, legislators seem powerfully drawn to the remedy of increased punishment.  Such a legal change may possibly provide some reassurance to the public in the short run, but long-run results are apt to be disappointing and maybe even counterproductive.  There are several difficulties with the theory that increased punishment will necessarily reduce crime and increase social trust.

First, the effectiveness of a deterrent threat is determined more by the certainty and swiftness of punishment than by its severity.  If one sees punishment as unlikely, then the theoretical severity of punishment will not make much of an impression.  And, for many crimes, the risk of apprehension and conviction is indeed quite low.  Further exacerbating the difficulty, criminals tend to be more impulsive and less risk-averse than the general population.  Bear in mind that criminals are disproportionately young, mentally ill, poorly educated, and substance abusers.  Such individuals do not conform especially closely to the model of the “rational utility-maximizer” on which much deterrence thinking is premised.  Thus, even if the risks of apprehension and conviction are relatively high for a particular type of crime, some perpetrators may be simply unable or unwilling to focus on those risks.

Second, increasing punishments for a particular crime may also increase the risk of disproportionate punishments, which (as discussed in the previous post) may undermine social trust.  An example might be some of the draconian sentence increases adopted for crack cocaine offenses in the late 1980s, which sometimes resulted in even low-level crack transactions being treated as the equivalent of serious violent crimes and which generated a significant backlash in some of the most affected communities.

Third, to the extent that increased punishment means longer prison terms, such a strategy can prove quite costly in a number of respects.  Prisons are expensive to build and operate, requiring diversions of limited public resources from potentially more productive uses.  (For instance, because of the certainty/severity point made above, it seems likely that we could generate greater crime-reduction benefits from hiring more police officers than from hiring more prison guards.)  Long prison terms may also leave some offenders more, not less, likely to commit crimes in the future.  Moreover, social scientists have recently drawn attention to the possibility that high rates of incarceration in disadvantaged communities may have destabilizing, crimogenic effects in those communities.

In short, when it comes to deterrence, more can sometimes be less.

Individual Control: Some individuals are more easily deterred than others — we recognize wide variations in cognitive capacity, moral feeling, self-control, and so forth.  When it comes to hard-to-deter individuals, criminal law provides reassurance by promising to identify and control them through incapacitation and/or coerced rehabilitative treatment.

One approach to individual control would be this: all of those who act in seriously harmful or dangerous ways should be controlled until such time as they are demonstrably safe to be released from special controls.  While not without its appeal, there are some problems with approach.  First, it would likely be very costly in the same sorts of ways as a strategy of increased punishment for deterrence purposes.  Second, we know that a great deal of bad conduct is not repeated even in the absence of robust coercive measures.  Sometimes bad conduct is simply a situation-specific aberration.  Other times, the offender learns his lesson the first time around, whether as a result of feelings of guilt or informal social sanctions or relatively mild legal sanctions, such as an arrest without charges.  Third, the relevant predictive sciences are quite weak; in many cases, it will be impossible to say with certainty when the offender can be released without any particular danger to others.  This could lead to long periods of social control in response to relatively minor offenses, and ultimately a system that breeds more fear than trust.

In light of such concerns, the individual control model has perhaps had its greatest impact on criminal law through recidivism statues, that is, laws that increase punishment based on the existence of a prior record of criminal convictions.  In such a setting, it seems much less likely that the current offense is a one-time aberration.  Still, even with some recidivism statutes, individual controls sometimes seem unfair and unduly costly, as with the California three-strikes law that, until recently amended, could result in a life sentence for shoplifting.

Affirmation of Moral Values: Because we are obviously unwilling to live in a Soviet-style police state, deterrence and individual control will never be foolproof.  Some people will act in malicious or careless ways, and other people will be hurt as a result.  Such occurrences, however, need not lead to a breakdown in social trust if people nonetheless have confidence that most of those around them share and are guided by an internalized set of values — confidence that their fellows can be counted on to act in ways that are reasonably principled, predictable, and reflective of concern for others, even when they think they can get away with behaving differently.  To the extent that criminal law purports to embody society’s moral values, it is capable of providing reassurance that, whatever the outrages perpetrated by a few offenders, society as a whole is still worthy of trust.

The mechanism I am describing is roughly in line with what others have called the retributive function of criminal law.  In some cases, this affirming function may arguably call for punishments that go beyond what might be readily justified by deterrence or individual control purposes.  The famous case of the starving, shipwrecked sailors who engaged in cannibalism may offer an example.  Arguably, no amount of deterrence will prevent people from doing what they believe they must in such extreme life-or-death situations, while individual control seems unnecessary — safely back on land, the sailors are highly unlikely to revert to cannibalism.  Yet, the act of cannibalism provokes such powerful moral revulsion that one might doubt the moral fiber of a society that fails to condemn it.

There are risks, however, to reducing criminal law to a vehicle for expressing moral outrage.  For one thing, this might be quite costly, potentially diverting resources, for instance, in ways that diminish the effectiveness of deterrence and individual control.  For another, immediate emotional responses are not always the responses that we would feel most comfortable with over the long run.  To note just one pitfall that has particular salience in the criminal-justice arena, much research suggests that racial bias is more likely to infect quick, emotional decisions than more coolly reasoned decisions.

Critics like Jim Whitman warn that, however much theorists might try to distinguish retributivism from revenge, in practice the one has a tendency to slide into the other.  If we are interested in the moral values that are embodied by our criminal law, we should be wary of a criminal law that seems to embrace vindictiveness.  As I noted in the first post, one of the basic functions of criminal law is to create an alternative to tit-for-tat private reprisals.

Notwithstanding such pitfalls, we always will — and probably should — ask the criminal law to reaffirm in symbolic fashion the basic moral values on which social trust is based.  The challenge is to avoid doing this in ad hoc, emotionally driven ways that thoughtlessly undercut some important moral values even as they affirm others.  If we can keep sight of the proportionality ideal, as described in my last post, that would go a long way toward assuring the sort of restraint and moral balance that is called for.

Affirmation of Victims’ Dignity: Part of what is scary about crime is the potential humiliation of being victimized.  The person who intentionally harms another sends a message that the victim doesn’t count, that the victim has no entitlement to the regard of others in society.  We look to criminal law to counter that message, to reaffirm the victim’s dignity by condemning the harm as a moral wrong.

Viewing the criminal law through this lens provides another explanation of why the criminal law has traditionally sharply distinguished intentional from accidental harms, for it is really the intentional harms that send the most disturbing message about the victim’s status and that most cry out for a symbolic response.

This function of criminal law, which focuses on its moral symbolism, overlaps considerably with the affirmation of moral values discussed above.  Similar pitfalls are also present here.  We must be careful that in affirming the dignity of victims we do not descend into simple vindictiveness or a cruelty that would deny the offender’s dignity.

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The various mechanisms by which criminal law promotes social trust are complex and subtle.  Punishment can further important values, but more is not always more.  Criminal law is part of a network of social institutions that, to varying degrees, have proven successful in helping people to live together peacefully and productively in a diverse society, but criminal law also poses a profound threat of oppression and cruelty.  However well-intentioned, criminal statutes must always be considered critically with an eye to their potential misuse.