The Difficulties of Deterrence as a Distributive Principle

The behavioral sciences increasingly call into question the assumption of criminal law\u27s ex ante influence on conduct. Potential offenders commonly do not know the legal rules, either directly or indirectly, even those rules that have been explicitly formulated to produce a behavioral effect. Even if they know the rules, the cost-benefit analysis potential offenders perceive -- which is the only cost-benefit analysis that matters -- commonly leads to a conclusion suggesting violation rather than compliance, either because the perceived likelihood of punishment is so small, or because it is so distant as to be highly discounted, or for a variety of other or a combination of reasons. And, even if they know the legal rules and perceive a cost-benefit analysis that urges compliance, potential offenders commonly cannot or will not bring such knowledge to bear to guide their conduct in their own best interests, such failure stemming from a variety of social, situational, or chemical influences. Even if no one of these three hurdles is fatal to law\u27s behavioral influence, their cumulative effect typically is. There seems little doubt that having a criminal justice system that punishes violators, as every organized society has, does have a general effect in influencing the conduct of potential offenders. What seems unlikely is that the manipulation of criminal law rules will alter people\u27s conduct, given the common lack of the needed prerequisites to a deterrent effect noted above. But even if such conditions did exist, there are still good reasons not to adopt deterrence as a distributive principle for criminal liability and punishment. First, dynamics of deterrent effect are complex and we at present have neither the information nor the understanding needed to reliably predict what effect will come from a given doctrinal manipulation. Further, every distribution of punishment will produce some deterrent effect, even a just deserts distribution, for example. Deterrence as a distributive principle can only do a better job than a desert distribution where it deviates from desert – that is, where it does injustice and fails to do justice -- yet it is just these cases of deviation from desert in which deterrence works most poorly and has its greatest crimogenic effect. This short essay serves as a core text for the Criminal Law Conversations project. Available for download at http://ssrn.com/abstract=114710