Research | Stiffer sentences might seem like a smart way to discourage lawbreakers, but deterrence seldom works, according to Paul Robinson, the Colin S. Diver Distinguished Professor of Law.
Even though deterrence has been the objective of criminal-law policy for the last 40 years, the preconditions for it typically don’t exist, Robinson explains. “Most people really don’t know what the law is.” When Robinson and his co-researcher tested the knowledge of residents in five states about four legal rules, including the use of deadly force in property protection, they found that the actual law had no effect on people’s answers. Instead, their answers closely matched their own judgements of what the law should be.
On top of that, potential offenders often have circumstances that “make it difficult to bring that knowledge of the law to bear,” he says. “They may be drug addicts or acting out of rage or fear. They may be heavily influenced by psychological dynamics from group or family.” And for the risk-taking group of potential criminals, the perceived benefits of committing a crime often outweigh the costs—especially since only one percent of crimes committed actually lead to a conviction.
Working with John Darley, a Princeton psychology professor, Robinson analyzed criminal-law formulation and crime rates, finding in most studies no link between longer prison terms and lower crime rates. In the March 3 issue of the Oxford Journal of Legal Studies, the authors wrote, “Where doctrine has been formulated to maximize deterrence, overriding other goals, such as doing justice, such deterrence analysis has frustrated those other goals for no apparent benefit.”
Some studies they examined did claim to find a link between increased jail time and decreased crime. Robinson suspects those cases result from “the isolating effect of longer incarcerations,” and not deterrence.
His alternative: “Give people the punishment they deserve—no more, no less. To the extent there is some potential deterrent effect, you will get it by threatening to give people the punishment they deserve.” He doesn’t offer specifics about how to determine the deserved punishment for a particular crime.
In contrast to deterrence, social pressures do influence conduct, Robinson goes on to say, referring to “your own notion of your internal norms and your regard for what your family and friends will think of you.” He says, “The criminal law can harness those social forces if it builds moral credibility with the persons it’s trying to influence. The more criminal law is seen doing justice, the more it builds credibility. The more it’s seen doing things that conflict with the community’s intuitions of justice, its moral credibility is cut.”
Robinson admits that there are some specific cases, such as tax evasion, in which deterrence might work. “If the potential population you’re aiming toward are highly educated white-collar offenders who have a real incentive to figure out what the law is and have the ability to bring that information to bear in governing their own conduct, and if the detection and punishment rate is [perceived to be] high enough, then you could have deterrence playing a significant role.”—S.F.