re-write in progress

THINKING ABOUT THE CRIMINAL LAW

If Holmes was correct and the law is what it does, then the criminal law is a force that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that diverts massive sums of money from pressing social needs such as education, that murders men in the name of justice and that incarcerates the innocent along with the guilty.

It is hard to argue that such a system is not in desperate need of reform. That reform, however, never seems to come. In part, this is because American politicians interested in looking for alternatives to incarceration are deemed "soft on crime" and punished at the polls. Despite studies that suggest that alternative methods may be more successful at preventing recidivism, the electorate clings to the belief that locking people up for greater and greater amounts of time will make society a safer place. This belief rests on the theory of deterrence. But deterrence, at least as it is conceived of in America, is another form of Felix Cohen's transcendental nonsense, in that it allows society to think positively about the criminal law, even while knowing that it does horrible things to other human beings.

DETERRENCE IN AMERICA

At its heart, deterrence is a balancing test. Theoretically, a society can balance the costs of a particular punishment with the benefits gained from imposing that punishment. In the United States, by far the most common punishment for felonies is imprisonment. However, while many of the costs of imprisonment (in terms of financial expenditures and community and individual impact) are quantifiable, it is far more difficult to evaluate the the benefits of punishment.

Crime Prevention

Perhaps the clearest "benefit" of incarceration is retribution. While there is no question that retribution plays a large part in the American criminal justice system, many people struggle with the concept of retribution as a "benefit". For this reason, notions of retribution are often bound up with a more dubious benefit: the idea that incarceration deters both the individual felon and potential future actors from engaging in similar behavior.

Individual Deterrence

Individual deterrence takes two forms: first, the belief that a stern enough sentence will prevent a criminal from repeating his offense and, second, that if a criminal is locked up he will be completely "deterred" from committing a future crime.

The first argument is easy to dispose of. Studies show that much individual crime is a reaction to an immediate, stressful situation and that the perpetrators are often under the influence of drugs or alcohol. If we were really concerned about preventing recidivism, we would focus on working with the incarcerated to change the way they react when they are faced with stressful trigger situations. We would, in other words, focus our penal system on rehabilitation. Quite obviously, we do not.

The problem with the second argument is that time in prison is damaging. When convicts are eventually released, they are mentally and emotionally worse off than they were at conviction. They may be even more dangerous to the community. California's three strikes law "fixes" this problem by sentencing repeat offenders to life in prison. A nice, neat solution, except that it is economically untenable and leads to things like this.

Future Actor Deterrence

The more common deterrence argument is that punishing an individual today will deter potential future criminals. However, this idea has no place in the multitude of crimes that occur "in the heat of the moment." More significantly, there is no undisputed empirical evidence that deterrence is effective at all. Whether we're discussing heightened sentences, like the death penalty and three strikes laws, or increased law enforcement "tools", like stop & frisk or gang injunctions, deterrence is something we believe in, not something we actually know.

Moreover, when we make deterrence based decisions, those decisions are not based in fact. Not only do we lack data showing that deterrence in general works, we have no idea what degree of punishment will actually deter future actors. We are making value judgments: what activities should be deterred? What penalties are necessary to create deterrence? How harshly are we willing to punish individual human beings to achieve that deterrence? But if we accept that, as an empirical matter, deterrence is not proven to work, all these judgments boil down to is how much punishment does a particular crime deserve.

Peace of Mind

There is, however, another societal "benefit" beyond retribution and crime prevention that rarely gets mentioned in discussions of appropriate punishment: peace of mind. Perhaps this is because we are not comfortable baldly stating that we are okay with ruining the lives of criminals (and sometimes their families) and tearing apart communities so that we can sleep better. But this is precisely what we do.

One of the most high-profile sentencing laws in recent years is Megan's Law, which created sex offender registries with names, address and photos of people who have committed sexual assaults. Although the laws in many states extend beyond pedophiles, the idea, as it was promulgated at the time, was to make parents aware of sexual predators in their neighborhoods so that they could better protect children. The problem is, it didn't work.

Today, the law's supporters say it wasn't supposed to prevent child sexual abuse, it was only intended to give parents better information. In other words, peace of mind. In New Jersey, that peace of mind cost four million dollars annually as of 2007. Would the Jersey state legislature have passed a law if it had been presented as one that would cost millions of dollars to make parents feel their children were safer while not actually improving children's safety? Maybe, maybe not. But by not framing the question on its true terms, the legislature avoided, as we all do, actually examining what end they were wielding the criminal law to achieve.

Conclusion

-- By JohnSchwab - 21 Feb 2010