Deterrence is one of the several goals of punishment alongside incapacitation, rehabilitation, and retribution. Deterrence emphasizes that an individual will feel reluctant to commit a crime if the consequences of that punishment are too great. Legislators have utilized deterrence measures to create policies intended to reduce recidivism, sometimes at the cost of reinforcing racial disparities throughout the United States’ criminal justice system.
What is Deterrence Theory, and how does it relate to crime prevention?
Deterrence Theory has three components: certainty, celerity, and severity of punishment, all of which aim to prevent both individuals who may commit a crime as well as other members of society from participating in unwanted behavior.
- Deterrence Theory implies that there is a certainty that the person who commits a crime will be caught. If a person believes that they will not be caught, then the threat of any punishment will not be effective;
- Celerity is the idea that punishment imposed immediately after an offense will likely be more effective than one that is imposed years later;
- Finally, if the benefit of carrying out a criminal offense outweighs the consequence, then committing a crime may seem like the more advantageous option, even to a rational person. As such, the severity of punishment is perhaps the most important component of Deterrence Theory, demonstrating that the punishment must not only deter individuals who may commit a crime, but also other members of society by positioning criminal behavior as unacceptable.
Contemporary deterrence theories are rooted in classical criminological theory. Cesare Becarria’s 1784 “Essay on Crimes and Punishments” and Jeremy Bentham’s 1781 “An Introduction to the Principles of Morals and Legislation” formed the foundation for the revival of Deterrence Theory in the 1970s. Rather than utilizing Deterrence Theory to explain why people commit crime, as was initially intended by founding philosophers such as Becarria and Bentham, economists and criminologists began to view the theory as a solution to crime. Principle assumptions of deterrence theory include:
- A target group receives a message, such as “it is wrong to murder, and taking someone’s life may result in a life-term prison sentence;”
- The target group perceives the message as a threat;
- The target group makes a rational decision as to whether or not they partake in criminal behavior based on the message they received.
The “Get Tough Approach” to Crime
After violent crime rates increased by 126% between 1960 and 1970, Congress adopted deterrence theories from classical criminological theory in the 1984 Sentencing Reform Act, which was signed by President Ronald Reagan and served as the beginning of what would eventually become the “Get Tough On Crime” era. The 1984 Sentencing Reform Act set forth a new sentencing structure where any defendant found guilty of any offense under any Federal statute would be sentenced to a set term of imprisonment or probation and a fine in addition to additional sanctions. Legislators and legal scholars posited that mandatory sentences would deter people from committing crimes because harsher consequences would prevent criminal behavior. Despite the lack of evidence supporting these legislators’ claims, such ideology eventually gave birth to President Bill Clinton’s “Tough on Crime” campaigns throughout the 1990s.
The 1994 Violent Crime Control and Law Enforcement Act (“the Crime Act”) included funding for 100,000 more police officers, and implemented the “Three Strikes” policy. Overall, the bill lengthened prison sentences for certain federal crimes and raised mandatory minimum sentencing requirements across the United States. Anyone convicted of a crime under a mandatory minimum would receive at least that sentence. Mandatory minimums were intended to promote uniformity, ensuring that the law would determine a sentence, not the biases of the judge. The Three Strikes Law generally mandates a life sentence for the third offense of violent felonies, imposing harsher punishments for people with lengthy criminal records. Proponents of the Three Strikes Law claim that if a person who committed a crime knows that they face the potential of a life in prison for their next crime, they will not participate in offending behavior. Advocates of the policy contend that the Three Strikes Law protects victims who may fear the return of those who committed the crime, especially in cases involving rape or theft. Opponents of the Three Strikes Law argue that the policy does not deter the most violent crimes, since a life sentence would not prevent a person from committing a crime who acts impulsively. Additionally, out of nearly 34 million serious crimes committed each year in the US, only 3 million result in arrests, so many individuals who consider committing a crime do not anticipate being caught.
Truth In Sentencing (TIS) laws restrict the possibility of early release for incarcerated individuals. Such laws aim to limit the amount of time people in prison can earn off of their non-life sentences, which require incarcerated people to serve a substantial portion of their prison sentence before being eligible for release. Additional federal legislation passed as a part of the Crime Act and amended in 1996 gave states grants to expand their prison capacity if they imposed TIS requirements on those who commit violent crimes. The program, known as the Federal TIS Incentive Grant Program, functioned under the 85% Rule, which required states to force those who commit violent crimes to serve at least 85% of their sentence in prison in order to receive the grant. As a result, earning time off of court-appointed sentences through good behavior and participation in prison programming or rehabilitation no longer helped people in prison reduce their prison sentence. New York implemented a 1998 law which required first time offenders to serve 85% of a determinate sentence. Nevada’s TIS laws required anyone who committed a crime to serve 100% of the minimum prison term before becoming eligible for parole.
Criticisms, “Get Tough” Policies, and their Impact on Racial Minorities
Deterrence Theory and related policies aim to reduce crime, but a series of studies indicated that harsher penalties led to increases in crimes of rape, assault, larceny, robbery, burglary, and auto theft. Because criminal acts may be driven by a variety of factors, such as the influence of drugs or alcohol, the existence of harsh penalties is not necessarily a deciding factor in a person’s willingness to commit the crime. Deterrence Theory assumes that human beings are always rational actors that consider the consequences of their behavior before committing a crime, so someone who is temporarily impared would not consider the pros and cons of their actions. Additionally, proponents of Deterrence Theory would assume that more severe sentences reduce a person’s likelihood of committing another crime. However, a 1999 study that reviewed 336,052 people with criminal records dating back to 1958 found that longer prison sentences increased recidivism by 3%. Finally, Deterrence Theory operates under the assumption that there is certainty people will be apprehended for committing a crime, but due to the limits of the US criminal justice system, many crimes do not result in arrest or conviction. Increasing the severity of punishment through longer prison sentences, for instance, would not deter individuals from criminal behavior if they do not believe they will be apprehended.
Mandatory minimums aim to create a more equitable criminal justice system, however one effect has been an increase in the power of prosecutors and a reduction in the power of judges in sentencing. Prosecutors have the ability to charge defendants with crimes that trigger mandatory minimum sentences. Previously, a judge had the ability to reduce sentences based on their understanding of the case and the defendant’s risk to society, however TISs moved that decision to prosecutors.
African-American adults are 5.9 times more likely and Hispanic adults are 3.1 times more likely to be incarcerated than white adults, so imposing life sentences because an individual has a criminal record disproportionately impacts people of color. The Crime Act also expanded the school-to-prison pipeline and increased racial disparities in juvenile justice involvement by creating mandatory minimums that impact low-income children of color who are convicted of multiple crimes. Additionally, prosecutors are twice as likely to pursue a mandatory minimum sentence for African American people than for white people who were charged with the same offense. The 100:1 ratio in the amount of crack cocaine v. powder cocaine that triggered a five year mandatory minimum ultimately led to the mass incarceration of African Americans. Five grams of crack cocaine resulted in the same sentence as 500 grams of powder cocaine, and because the majority of people arrested for crack offenses are African American, the 100:1 ratio created racial disparities in the average length of sentences. The Fair Sentencing Act of 2010 reduced the statutory penalties for crack cocaine offenses to a 18:1 ratio and eliminated the mandatory minimum sentence for simple possession of crack cocaine by increasing statutory fines.
