Does Increasing Legal Punishment Decrease Particular Criminal Acts?

This research paper constitutes a selective summary of existing empirical literature regarding whether the increase of legal punishment will decrease particular criminal actions. This is a central issue for many respects surrounding policy development and sentencing guidelines in the Criminal Code of Canada, which reflect on the public’s perception and confidence in the legal system to enhance law and order in society.

For many years, there has been much debate on this issue of whether increasing legal punishment will deter potential offenders from committing criminal acts. However, to establish an accurate conclusion, criminologists and scholars must first identify what is the underlying objective of punishment? Is it to inflict suffering on the offender or to reassert the offenders morals to reconstitute them as productive citizens. Although punishment is subjected to different meanings and degrees of severity, in Canadian law, legal punishment is assumed in the form of imprisonment thus severe punishment means longer prison sentences. Furthermore, In 2009 Statistics Canada published findings that convey a steady decline in the crime rate for the past 2 decades; yet findings from a poll conducted in 2005 state that 74 percent of Canadians deem sentencing practices as being too lenient (Roberts, Crutcher, & Verbrugge, 2007), resulting in demands for more punitive sentencing reforms and tougher punishments on offenders. Specifically, the focus of this research is to determine if increasing legal punishment will result in a decrease in particular criminal actions. Although current research regarding the concept of deterrence indicates mixed results; nonetheless, this paper will analyze current findings and attempt to identify the black and white specks in this gray area of research. In other words, this research will seek to answer the following, is there a general deterrent effect? Is there a specific deterrent effect? And what influence does the severity of punishment have on crime?

First off, lets begin by examining what the Canadian law states in regards to sentencing and punishment. Section 718 of the Criminal Code outlines the principles of the sentencing system, which include denunciation, deterrence, rehabilitation, and protection of the public; additionally, principles regarding the victim were included, that being reparation and responsibility. Although these codes are fashioned around the concept that the punishment must be proportional to the crime, some of these principles contradict one another. For instance, rehabilitation anticipates the participation of trained professionals such as psychiatrists, psychologists, and social workers to help reintegrate the offender into society as a productive citizen and thus sustain from further criminal actions (The National Center for Policy Analysis, 1998); on the contrary, specific deterrence proposes that if an offender is severely punished then they will be discouraged from committing future criminal actions (Spohn, 2007). However, mandating a long prison sentence for an offender based on mandatory minimum law that doesn’t take into account the offenders circumstances is likely to create injustice (Roberts et al., 2007). With that being said, a judge has the power to exercise discretion to deem the best-suited sentence for an offender that’s most likely to deter them from committing further crime. On one hand, a judge could impose a conditional sentence; on the other, a judge has the authority to place the offender in prison to serve the minimum mandatory sentence. The latter sentencing option could be applied as means of deterrence to the criminal or the general public from committing similar crimes.

In relation to the theory of deterrence, this theory suggests that increasing legal punishment on offenders will cause a reduction in crime, implying that crime is a result of a risk assessment that is based on offenders rationally calculating the costs and rewards of their actions (Sphon, 2007). In other words, an offender will commit a criminal act when the benefits of the crime outweigh the costs of punishment. Additionally, a deterrent effect can be focused on the individual, specific deterrence; when an individual is punished severely they will be discouraged from committing further illegal actions. Likewise, general deterrence indicates that if the severe punishment is made public as a consequence to a criminal act then other potential offenders will refrain from committing similar actions (Sphon, 2007). With that being said, a detailed analysis of the deterrence theory will surface some imbalances.

First, the deterrence perspective assumes that criminals are aware of the law and the severity of the legal punishments. Although some offenders might be conscious that such criminal behavior has consequences, many are not aware to what degree of punishment their actions will follow. Similarly, the objective of a minimum mandatory sentence of imprisonment is to create a deterrent effect (Roberts et al., 2007). However, An open-ended survey conducted on Canadians asked to list a criminal offence with a mandatory minimum sentence besides murder; during the period the survey was conducted there were 31 mandatory minimum sentences, yet results showed that almost half of all respondents could not recall any offence, with a highest cited offence of only 19 percent for drunk driving (Roberts et al., 2007). On the contrary, drunk driving was known in 1 in 5 Canadians, which could be a result of guilt by association or participation. In other words, if it involves the individual or is able to relate in some way, then they may seek legal knowledge regarding that matter, even through his or her association of friends. On the other hand, a criminal who commits a robbery with a fake gun (assuming the offender realized the severity of punishment of possessing a real firearm thus avoids having a firearm), may not be aware that he will be charged in court with robbery with a weapon, even if its not real; therefore, critical knowledge of the law and how charges could be laid is certainly beyond common understanding. Consequently, the deterrent effect commits a flawed assumption that criminals are deterred from committing an offence because they are aware of the exact legal consequences that follow their criminal actions.

A second problem with deterrence is that it operates under the assumption that all criminal actors are rational beings that consider the consequences of their actions. “Even people in a state of rage choose when, where and how to yield to their emotions and impulses” (NCPA, 1998). This is a false premise because while some crimes are done due to forceful circumstances, other crimes are driven by uncontrolled emotions and impulses without having time to consider the consequences until its too late. Defending a loved one that ends in causing the death of the perpetrator is an example of a conflict that can happen so fast that an individual would not have time to consider the risk of engaging in such violent behavior. Likewise, a person under the influence of drugs or alcohol can’t necessarily make rational decisions. Many individuals are unable to remember their actions on the night they were drunk. Nonetheless, some research indicates criminal rationality in decision-making; for instance, burglars choose targets by considering neighborhoods that are not heavily patrolled (NCPA, 1998). This paper will further analyze empirical findings to indicate whether in fact the severity of punishment has a deterrent effect on criminal acts.

Furthermore, research findings by Durlauf and Nagin (2011) indicate that a deterrent effect is more likely to occur if there is an increase in the certainty of punishment (getting caught by the police), as opposed to the severity of punishment (serving a longer prison sentence). Its estimated that a “50 percent increase in the probability of incarceration prevents about twice as much violent crime as a 50 percent increase in the average term of incarceration” (NCPA, 1998, p.6). Certainly, most potential offenders will deter from committing a crime if they knew they’re most likely to get arrested. In this case, there’s deterrent effect for property crimes because potential offenders may realize that there is a higher chance of getting arrested because a resident is home or there is a home security alarm system (NCPA, 1998). Similarly, the presence of police officers downtown on a Saturday night may prevent assaults and misconduct on individuals who are not completely intoxicated because they are able to rationalize that their chances of apprehension are very high. Reasonably, criminals will commit more crimes when the probability of apprehension is low. For instance, police-reported data indicates that 33 percent of all robberies in 2008 were on the street, while only 4 percent were bank robberies (Statistics Canada). Moreover, research done by Civitas, an independent think-tank, found that a 1 percent increase in the detection of crime would result in preventing 0.38 percent of burglaries, and 0.26 percent of frauds annually (Bandyopadhyay, 2012). On the other hand, a 1 percent increase in sentencing would result in a reduction of burglary by 0.08 percent and fraud by 0.2 percent annually (Bandyopadhyay, 2012). Evidently, The certainty of apprehension is an obvious deterrent for most crimes; however, the focus of our research question is whether the severity of the legal punishment has a deterrent effect of offenders.

The severity of punishment in a deterrent effect is a prime example of California’s enactment of the “three strikes your out” rule (Durlauf & Nagin, 2011); this law mandated a sentence of life in prison or a minimum of 25 years if convicted the third time. One could speculate that the recidivism rate would generally decrease, at least for offenders that have been convicted twice. This rule of law has been examined by a large number of researchers; further analysis of this law confirmed “Only those individuals with two strikeable offences showed any indication of reduced offending.” (Durlauf & Nagin, 2011, p. 58). This is an expression of a specific deterrent effect in that potential offenders that have already been convicted of two strikes don’t want to spend the rest of their life in jail. With that being said, its acceptable to deduce that fear of the most extreme punishment, life in prison, has in fact a deterrent effect. Similarly, a criminal had stated that “I rather for the police to catch me vs. a person catching me breaking in their house because a person will you” (NCPA, 1998). Thus, fear of such a severe punishment even if its not through legal means has a more deterrent effect on the offenders. Furthermore, its possible that the more extreme the punishment is the more deterrent effect it has on offenders. However, if applied to Canadian principles of law, life in prison is too extreme and not a punishment proportional to most criminal offences or offenders. Furthermore, it’s fair to speculate that a “two-strikes your out” for American violators of law would undoubtedly cause a more powerful decrease of the recidivism rate and a dramatic increase in the prison population. However, its noteworthy to highlight that there was no indication of a drop in crime rate that could be attributed to the enactment of the three strikes statute (Durlauf & Nagin, 2011).

Additionally, California’s statute, Proposition 8, provided that repeat offenders get extra time, enhanced sentence. Moreover, an examination of the deterrent impact of this statute by Kessler and Levitt (1999), estimated that the deterrent effect in the first year of the statutes enactment was responsible for 4 percent decline in crime rate (Daurlauf & Nagin, 2011). However, there was a slight falsification in the methodology. Kessler and Levitt had examined data from every other year, but when all annual data is taken into account, the findings suggest, “the decline in crime rates in the effected categories begins before Proposition 8’s enactment, and the slope of this trend remains constant through implementation” (Durlauf & Nagin, 2011, p. 60). Thus, data is not reliable and does not support the conclusion that the statute has any deterrent effect on crime.

If punishment deters criminals from reoffending then why is there such a large population in American prisons? Charles Murray states that the United States had put many criminals behind bars since it failed to imprison them earlier (NCPA, 1998). Data shows that in 1980 the expected punishment, length of prison sentence a criminal can expect for a serious offence, was at a low 9.7 days in prison for at an all time high 22.8 serious crimes (NCPA, 1998). This finding may seem to supports Charles Murray’s statement; however, it doesn’t take into account other economic and social factors that may have attributed to the decline in crime rate. Additionally, a correlation between these variables does not entail significant grounds to claim a causal hypothesis because this chart does not take into account alternative hypothesis. Furthermore, if the deterrent effect has strong significant impact on the crime rate then its understandable to have a high prison population for a few years while the overall crime rate is decreasing. However, the United States has one of the most punitive punishments, yet the crime rate is still fairly higher than most countries (NCPA, 1998).

Respectively, a research study done in the University of Birmingham estimated the number of acquisitive crimes that could be prevented by a 1-month increase in the average length of the sentence. Examples of acquisitive crimes are burglary, theft, robbery and fraud (Bandyopadhyay, 2012); these are crimes where the offender is excessively interested in acquiring money or material things. The study estimated that an additional 1 month of custody could prevent 4,800 burglaries and 4,700 fraud crimes (Bandyopadhyay, 2012); however, only 47 robberies were deterred by an additional 1-month in custody for offenders. Moreover, to minimize the rate of acquisitive crimes, they estimated that an increase in the average length of sentence by one third would prevent 2,600 robberies, 11,000 frauds, and 21,000 burglaries (Bandyopadhyay, 2012). However, a limitation in this study is the fact that the data cannot distinguish between incapacitation and deterrence effects. “I.e. whether the crime reduction is occurring because more otherwise likely repeat offenders are in prison or because the threat of prison deters criminal behavior in the general population” (Bandyopadhyay, 2012, p.5) Regardless, the longer the average sentence will result in a significant reduction in acquisitive crimes. Moreover, It safe to assume that the severity of punishment outweighs the uncertainty of rewards; because potential offenders are uncertain if they will succeed if they commit fraud, or property crimes, yet the increase of imprisonment sentence may act as a possible general deterrent, or because more repeat offenders are behind bars for longer period. Nonetheless, it seems apparent that the deterrent effect has more impact on the increase of prison population rather than a decrease in crime rate.

An increase in the length of a criminals prison sentence will most likely mean an increase in the prison population, at least at the start of this initiative. Steven Levitt estimated that for each 10 percent increase in prison population, there was a 7 percent decrease in robberies, 8 percent decrease in burglary and assault, and a 6 percent decrease in theft and larceny (NCPA, 1998). Such decline in crime seem very compelling to the general public; however, a 10 percent increase in prison population is an enormous number of prisoner to only decrease crime by that little. This could mean that the prisoners are only deterred from committing crime for that time being, simply because they are confined; the prisoners who are in jail are the reason crime rate is decreasing, they could be the offenders responsible for the otherwise higher crime rate, not necessarily because other potential offenders are not considering committing crime.

Furthermore, are prisoners likely to reoffend after they are released or is there a specific deterrence effect? An analysis of 300,000 offenders found that “longer sentences were associated with a 3 percent increase in recidivism” (Gendreau, Goggin, Cullen, 1999). Criminologists can speculate a few reasons for this outcome. First, most of the offenders in the sample are possibly high-risk offenders with an existing criminal record, thus would have committed more crime if they were not incarcerated. However, the same study concluded that increasing the length of the sentence was associated with an increased probability of reoffending for both low-risk and high-risk offenders (Gendreau et al., 1999). Second, prison severed as a school for crime because all prisoners contact was with other inmates, thus they gained more criminal based knowledge. Additionally, prisoners could get “access to criminal social networks while in prison, improving their opportunities to commit crime” (Bandyopadhyay, 2012, p.5). This speculation is supported by the research findings that low-risk offenders who are incarcerated for long periods are somewhat more likely to commit new offences rather than high-risk offenders (Gendreau et al., 1999). But this could be due to the reason that high-risk offenders are simply used to certain type of offences that they are associated, connected, and comfortable with committing thus they may be discouraged from trying new offences. Third, as a result of longer sentences, many offenders had weakened conventional ties with society and having a criminal record didn’t allow them much opportunity for employment, thus they had to result to illegal means for money. “If this were the case, offenders with stronger ties to conventional society would be more easily deterred by punishment than offenders with weaker ties” (Sphon, 2007, p.33). Likewise, its possible that if low-risk offenders spend less time in prison they would able to maintain employment and connection with family and friends that would aid the offender in the rehabilitation process.

In conclusion, the deterrence perspective proposes that a potential offender can be deterred from committing a crime if more severe punishment is imposed. However, many studies on the increase of severity of punishment have a modest deterrent effect at best; on the other hand, many studies indicate that there is no evidence that imprisonment reduced the likelihood of recidivism (Sphon, 2007). In fact, there is compelling evidence that offenders who were imprisoned have higher rates of recidivism and recidivated quicker upon release than the offenders who were placed on probation (Sphon, 2007). Metaphorically speaking, the same water that hardens the egg softens the potato. Denoting that, what might work for some offenders may not work for other depending on many factors that are nearly unmanageable to account for. Additionally, one of the major challenges to concluding such a research question of whether potential offenders are deterred from committing crime lies beneath the methodologies in research design; specifically, how to account for potential offenders that were deterred from committing criminal actions out of fear of punishment.

References

Bandyopadhyay, S. (2012). Acquisitive Crime: Imprisonment, Detection and Social

Factors. Civitas. University of Birmingham.

The National Center for Policy Analysis (1998). Does Punishment Deter?, BACKGROUNDER no. 148, 1–19.

Durlauf, S. N., & Nagin, D. S. (2011). The Deterrent Effect of Imprisonment.

Controlling Crime Strategies and Tradeoffs, 42–94.

Gendreau, P. Goggin, C., & Cullen, F. T. (1999). The Effects of Prison Sentences on

Recidivism. Ottawa: Solicitor General Canada.

Roberts, J. V., Crutcher, N., & Verbrugge, P. (2007). Public Attitudes to Sentencing in

Canada: Exploring Recent Findings. Canadian Journal of Criminology and Criminal Justice, 49(1), 75–107.

Spohn, C. (2007). The Deterrent Effect of Imprisonment and Offenders’ Stakes in

Conformity. Criminal Justice Policy Review, 18(1), 31–50.

Statistics Canada. 2009. How to Cite Statistics Canada Products. Statistics Canada

Catalogue no. 12–591-X. Ottawa. Version updated May 2009. Ottawa.

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