The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best

For the past several decades, the deterrence of crime has been a centerpiece of criminal law reform. Law-givers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime. Although this seems initially an intuitively compelling strategy, we are going to suggest that is a poor one; poor for two reasons. First, its effectiveness rests on a set of assumptions that on examination cannot be sustained. Second, the attempt to employ the strategy generates a good many crimogenic costs that are hidden if one is functioning within a deterrence paradigm. Experience has taught us to be precise about exactly what we are saying about the effectiveness of a deterrence strategy. There seems little doubt that having a criminal justice system that punishes violators, as every organized society has, does have the general effect of influencing the conduct of potential offenders. This we concede: having a punishment system does deter. But there is growing evidence to suggest skepticism about the criminal law\u27s deterrent effect -- that is, skepticism about the ability to deter crime through the manipulation of criminal law rules and penalties. The general existence of the system may well deter prohibited conduct but the formulation of criminal law rules within the system according to a deterrence-optimizing analysis may have a limited effect or even no effect beyond the system\u27s broad deterrent warning that has already been achieved. We will suggest that it may be true that criminal law manipulation can influence behavior, but the conditions under which this can happen are unusual, rather than typical, in criminal justice systems of modern societies. By contrast, criminal law makers and adjudicators formulate and apply criminal law rules on the assumption that they always influence conduct. And it is this taken-for-granted assumption that we find so disturbing and so dangerous. Available for download at http://ssrn.com/abstract=66110