Deterrence

Severity and credibility of the threat.

According to common sense, the motivating force of the threat of punishment will normally increase with the severity of the penalty and the risk of detection and conviction. It is a fair assumption that most offenses would not have been committed if the potential offender foresaw a 50 percent risk of being detected and receiving a severe prison sentence. Even in this situation there would, of course, be exceptions: cases of psychopathological crime, crime under extreme emotional stress, certain political crimes, and so on.

Since Beccaria it has been generally accepted that certainty of punishment is more important than severity, and research gives some support for this assumption. Such a simple formula needs qualifications. For example, in the field of white-collar crime a fine may be considered merely a business expense, whereas a prison sentence, through its stigmatizing character, may act as a strong deterrent. But if the level of penalties is already high, it seems probable that further increases in severity will yield diminishing returns. Moreover, excessively severe penalties may be counterproductive by reducing the risk of conviction. When the penalties are not reasonably attuned to the gravity of the violation, the public is less inclined to inform the police, the prosecuting authorities are less disposed to prosecute, and juries are less apt to convict.

Experience in Finland in the postwar years indicates that the general level of sentencing has a limited influence on deterrence. At the beginning of the 1950s the prison rate in Finland was about four times higher than in the Scandinavian neighboring countries (Denmark, Norway, Sweden). Since then the Finnish authorities systematically have endeavored to reduce the use of prison. Through decriminalization of offenses (most important public drunkenness), shorter sentences, more use of suspended sentences, community service, and heavy fines, the prison population has gradually decreased. In the 1990s it was on the same level as in the other Scandinavian countries, in which the prison rate has remained fairly stable (between 50 and 60 per 100,000 inhabitants).

Despite the great reduction of imprisonment in Finland the crime trend has been the same in all countries. The amount of crime has increased, but the curves are strikingly symmetric (Lappi-Seppälä, 1998). It should be added that the incapacitative effect of imprisonment plays a minor role in the Scandinavian countries as compared with the United States, which has much longer sentences and a prison population that is at least ten times higher (about 650 per 100,000 inhabitants in 1998).

The problem of communication. The motivating effect of criminal law does not depend on the objective realities of law and law enforcement but on the subjective perception of these realities in the mind of the citizen. A change that is not noticed can have no effect. If we intend, for example, to increase the deterrent effect in a certain field by more severe sentences or increased police activity, a crucial question will be whether people will become aware of the change. This aspect did not attract much attention in the classical theory of deterrence. It seemed to be tacitly assumed that there would be an accord between objective facts and subjective perceptions. Survey research into public beliefs and attitudes has demonstrated that this is far from the case. Smaller changes tend to go unnoticed whether they tend toward increased severity or leniency.

Types of offenses. The importance of deterrence is likely to vary substantially, depending on the character of the norm being protected by the threat of punishment. Common sense tells one that the threat of punishment does not play the same role in offenses as different as murder, incest, tax fraud, shoplifting, and illegal parking. One distinction of importance is between actions that are immoral in their own right, mala in se, and actions that are morally neutral if they were not prohibited by law, mala prohibita. In the case of mala per se, the law supports the moral codes of society. If the threat of legal punishment were removed, moral feelings and the fear of public judgment would remain as powerful crimeprevention forces. In the case of mala prohibita the law stands alone; without effective legal sanctions the prohibition would soon be empty words. There are, however, great variations within each of the two groups. As Leslie Wilkins stated, "The average normal housewife does not need to be deterred from poisoning her husband, but possibly does need a deterrent from shoplifting" (p. 322). A realistic appraisal of the role of deterrence demands a thorough study of the specific offense and the typical motivation of violators.

Differences among persons. People are not equally responsive to legal threats. Some are easily deterred, others may lack the intellectual or emotional ability to adjust their behavior to the demands of the law. Children, the insane, and the mentally deficient are for this reason poor objects of deterrence. The same holds true for people who lack the willpower to resist the desires and impulses of the moment, even when realizing that they may have to pay dearly for their self-indulgence. Individuals who are well integrated into the social fabric have more to lose by conviction than those on the margin of society. When experts and political decision-makers discuss the deterrent impact of the threat of punishment, there is always a risk that they may draw unjustified conclusions on the basis of experience limited to their own social groups.

Conflicting group norms. The motivating influence of the criminal law may become more or less neutralized by group norms working in the opposite direction. One may think of religious groups opposing compulsory military service, organized labor fighting against a prohibition of strikes, or a racial minority fighting against oppressive legislation. In such cases there is a conflict between the formalized laws of the state and the norms of the group. Against the moral influence of criminal law stands the moral influence of the group; against the fear of legal sanction stands the fear of group sanction, which may range from the loss of social status to economic boycott, violence, and even homicide. Experience shows that the force of the group norm often prevails. In an atmosphere of alienation and antagonism, any attempt at law enforcement, even a well-justified and lawful arrest, may be the signal for an outbreak of violence and disorder, as was the case with the Watts riot of 1965 (President's Commission, pp. 119–120).