Reconsidering General Deterrence

PJ wrote, in response to a comment of mine to The Only Viable Threat:

I will take exception to your claiming deterrence of others as a legitimate purpose of punishment. It ought to be considered unethical to harm people for the purpose of teaching other people something. For example, if a judge determines that, based on the circumstances of the offense and a defendant’s background, he deserves 10 years imprisonment, but that if he is given a 25-year sentence it will deter a future crime, is it just for the judge to give him the 25 year sentence? Isn’t this only punishing the defendant for the future crime that somebody else would have committed? I actually think there are some serious due process issues implicated in that view.

I had taken for granted that general deterrence — like specific deterrence, incapacitation, and rehabilitation and unlike retribution — was a legitimate goal of punishment (just, I suppose, as most people take for granted that retribution is a legitimate goal of punishment).

Is it just? PJ’s question assumes that we can tell (“based on the circumstances of the offense and a defendant’s background”) what a defendant deserves. This is an assumption that I reject. Because we’re not omniscient, we can’t possibly know enough about a defendant’s background to know what he deserves. As Clarence Darrow said:

We have heard talk of justice. Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves — whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.

This is why we’ve eliminated retribution as a goal of punishment — if we had the wisdom to know what each other deserved, retribution would be legitimizable.

I will consider this more carefully, but it seems to me that if we have eliminated retribution as a goal of punishment because we don’t really know what anyone deserves, then the question of punishment is a purely utilitarian one. We’re not giving people their deserts; we’re treating them in the way that we think will best balance the benefit to them with the benefit to society.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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7 Responses to Reconsidering General Deterrence

  1. Michael says:

    I agree and disagree. I believe deterrence is a legitimate end of criminal punishment. For those folks lacking personal moral convictions that would prevent them from committing crimes — for this is the subset of people who the criminal laws are written for — some sort of unpleasant consequence is required to counterbalance their desire to offend. At the same time, it would be wrong for a judge to enhance a particular defendant’s sentence, which would be just in light of all other factors, simply to increase the deterrent effect on the rest of society.

    That’s not as pretty as I’d like to express it, but I’m at work.

  2. Mike says:

    From what I understand, general deterrence is most (only) effective with white collar criminals. It is not really effective, however, with violent crime. Violent offenders might not give thought to their actions, and even if they do, they commit violent crimes anyways. This is unlike a white collar criminal who is more likely to be deterred by the punishment of others. At least that is what I have been taught.

  3. Leviathan says:

    I can’t think of a good reason to assume that general deterrence is not a legitimate purpose of punishment. Punishment, within civilized society and in the context of a system of laws, is concerned not only with correction of the individual but also maintaining the compliance of those who have not transgressed.

    It’s not by accident that criminal statutes, for example, comprise a proscription of behavior and a punishment. They serve both a specific and a general societal function. If the law successfully shapes behavior, deterrence is achieved and punishment is not invoked. If the proscription fails, [the certainty of] punishment is extremely important as a tool in correcting individual behavior and encouraging general compliance, which is a legitimate societal goal.

  4. Michael says:

    Bravo, Leviathan.

    As for specific instances of whether deterrence is effective, I’ve always heard on cops and robbers shows that burglars tend not to carry weapons to avoid getting their crimes enhanced, and that even violent criminals understand the stakes involved when killing peace officers. Of course, it turns out some other things I learned on “Dragnet” weren’t really true…

  5. PJ says:

    I should state that I agree that we are in no better position to determine what another human being “deserves” any more than we are what the opposite of the color blue is. (For the record, I think it’s yellow.) I doubt any judge–the person from whose perspective the conditional was framed in–would agree with either of us.

    Leviathan,

    That deterrence of others “is a legitimate societal goal” tells us nothing about whether it is ethical to inflict harm on a specific human being to achieve that specific goal. You wrote, “Punishment, within civilized society and in the context of a system of laws, is concerned not only with correction of the individual but also maintaining the compliance of those who have not transgressed.” I would agree that the threat of punishment is useful to maintain the compliance of those who have not (yet) transgressed–and can think of no reason off hand why so threatening would be immoral or unethical–but why should the actual punishment of any given individual have the deterrence of others as a consideration?

  6. Leviathan says:

    Based on my experience, I can tell you that [even a civilized] society needs more than the threat of punishment to encourage compliance. To achieve the desired end, society also must demonstrate its willingness to invoke punishment (see Pavlov). Succinctly, if you’re going to make sausage, you have to kill a few pigs in the process. Simply threatening the pigs will not get you where you’re going.

    I don’t assume that punishment is an individual matter (although I acknowledge that a recipient likely would disagree strongly). Punishment should be forward-looking. Of course, that’s not a new idea; Hobbes and others who unwittingly wrote the early drafts of the Constitution kicked that idea around a few hundred years ago. If not concerned with the future good, societal “infliction” of punishment essentially is a hostile act against an individual (simplistic as it sounds, this also applies to giving your kids a time-out or a spanking).

    It would be immoral and unethical to not consider the deterrence of others in prescribing punishments for that which we have made criminal.

  7. Jigmeister says:

    General deterence gives the punisher a measure of rationale and perhaps personal distance from our decision to punish. If punishment is a necessary proposition in a society then there has to be a reason to impose a punishment. When you think about it, general deterence is the only theory of punishment that we don’t have to justify on a personal basis and don’t bear a personal responsibility for. The safety of the whole is a given. Remember, don’t tell the firing squad which one has the live bullet.

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