Deterrence

Historically, deterrence has been, along with retribution, the primary purpose of punishment. The deterrent purpose has often led to penalties that, to contemporary minds, seem cruel and inhuman. Capital punishment and corporal punishment were the backbone of the systems of criminal justice up to the late eighteenth century. Executions were made public spectacles, and cruel methods of execution were often invented in order to enhance the deterrent effect.

In the eighteenth century the writers of the classical school of criminal justice—notably Cesare Beccaria in Italy, Jeremy Bentham in England, and P. J. A. von Feuerbach in Germany—based their theory of criminal law on general deterrence. The central idea was that the threat of punishment should be specified so that in the mind of the potential lawbreaker the fear of punishment would outweigh the temptation to commit the crime. The penalty should be fixed by law in proportion to the gravity of the offense. The certainty of punishment was considered as more important than the severity of the punishment. According to the classical theory, the penalty in the individual case had as its primary function to make the threat of the law credible. Only occasionally did these writers mention the moral effects of the criminal law.

In the late nineteenth century and the first half of the twentieth century the idea of deterrence lost ground to the idea of treatment and rehabilitation. Criminologists and penologists voiced the view that the most important aim of punishment was to correct the offender and, if this proved impossible, to incapacitate him. Therefore, the penalty had to be adjusted to the needs of the individual offender. In the United States the indeterminate sentence was introduced. The idea of the indeterminate sentence is based on an analogy to medical treatment in a hospital. The offender should be kept as long as necessary in order to cure him, no shorter, no longer; and just as with a stay in a hospital, the duration should not be decided in advance but on the basis of the observation of progress. On the European continent, measures of safety and reform for certain categories of offenders were introduced, based on similar ideas. The idea of deterrence was often ridiculed as fictitious, outmoded, and the cause of much unnecessary suffering. The saying "Punishment does not deter crime" was often accepted as established truth.

Although these ideas were dominant in the professional literature up to the 1950s, legislators, prosecutors, and judges continued to have faith in deterrence. From the early 1960s a change in criminological thought began to take place and gradually gained momentum. Research into the differential effects of various sanctions led to great skepticism with regard to society's ability to rehabilitate offenders. It appeared that choice of sanction had very little effect when compared to the personality and background of the offender and to the social environment he went back to after his encounter with the machinery of justice. Moreover, it seemed that no one was able to tell when to release the offender in order to maximize his chances of a law-abiding life in the future. At least for the overwhelming majority of offenders, the hospital analogy does not work.

Two tendencies have emerged: a movement in favor of fixed sentences in proportion to the gravity of the offense, as demanded by the classical school of criminal law ("neoclassicism"); and a revival of interest in deterrence. When faith is lost in the idea of treatment and rehabilitation as the basis for a system of criminal sanctions, other aims of punishment come into focus. Up to 1965 the only empirical research in deterrence consisted of a few papers on the death penalty. Since the mid-1960s a series of books and a stream of research papers have been published on the subject, mainly in the United States, Canada, and Great Britain, but also in Germany, the Netherlands, and Scandinavia (see Beyleveld). Most research has been undertaken by either sociologists or economists. The economists, following the lead of Gary Becker, look upon the risk of punishment as a cost of crime and apply econometric methods to find out how a change in the price affects the rate of crime (Eide).