Fifteen Eighty Four

Deterrence has long served as a justification for legal punishment of crime.  The logic?  Fear of punishment will cause individuals, groups, organizations, and the like to reduce their criminal activity, or, better yet, not to engage in it at all.  The idea goes back millennia, but was not formally articulated until the eighteenth century, first by Cesare Beccaria and then by Jeremy Bentham.  In a nutshell, the idea is that when punishment is more certain, severe, and swift, it will have a greater deterrent effect on crime.  In subsequent centuries, a focus on more and tougher punishment became the central avenue for addressing crime.  Worldwide, especially in the United States, concern about crime escalated in the 1970s.  Disenchantment with rehabilitation was growing, which further contributed to investment in deterrence-based policy responses to crime.  The result has been historically unprecedented growth in imprisonment and, more broadly, greater reliance on deterrence to justify all kinds of punishments.

An interesting contradiction behind this growth is that it did not match the growing calls by policymakers and others for evidence-based policy.  Indeed, despite many empirical studies on deterrence, there was little in the way of consistent or strong evidence that various legal punishments appreciably did or would deter crime.

In thinking about this situation, we, along with many scholars, have been keenly interested in understanding deterrence and its effects.  Mark was trained by and collaborated with Jack Gibbs, one of the pioneers in deterrence scholarship.  Over the course of his career, he has studied deterrence from many angles, and wrote a widely-cited article that drew attention to an overlooked aspect of deterrence—namely, the idea that people do not just have experience with punishment, they also have experience with avoiding it.  They have their own, or direct, experiences with punishment and punishment avoidance.  But they also have others’, or indirect, experiences.  In his work, Dan has undertaken a diverse set of studies on the effects of get-tough policies in criminal justice and corrections.  He has found that many of these policies, typically grounded in the logic of deterrence, may not be effective and may have adverse consequences.

Our backgrounds led us to thinking about the theoretical foundations of policy and eventually to writing a book that took a new look at deterrence.  Theory underlies any attempt to understand behavior and any attempt to understand how policies contribute to various outcomes.  Ignoring theory is perilous.  Why?  We may misunderstand phenomena, and we may invest in policies that are ineffective or harmful.  Yet, embracing theory uncritically, or subscribing to simplistic theoretical accounts, can be equally problematic.

Two years ago, we found ourselves mulling over the complexity of deterrence.  Dan had just taught a class that zeroed in on a critical conceptual issue he and Mark had discussed over the years:  The vast bulk of work on deterrence misses that deterrence involves the interaction of punishment certainty, severity, and celerity.  Researchers typically have examined one dimension—most frequently, certainty—on its own.  But no punishment ever entails only certainty.  There is always some level of severity and celerity.  Accordingly, one must use a model designed to capture the interaction of all three dimensions.

This idea might seem of interest as a purely intellectual matter.  But it is directly relevant for policy.  Lawmakers frequently focus on severe punishment as their “go-to” approach for deterring crime.  Perhaps greater severity deters, at least on average.  Perhaps, though, its effect is nominal when the certainty of punishment is low.  In such a situation, continued investment in ever-more severe punishment will achieve little.  A more effective approach in this situation might be to increase punishment certainty.

The more we talked, the more we realized that many such problems plague the deterrence literature and, at the same time, have direct relevance for evaluating policy.  For example, deterrence always involves a calculation about the costs of crime—that is, the pain and suffering of punishment.  But it also always involves a calculation about the rewards of crime.  Not just that; it involves a calculation about the costs and rewards of not committing crime or, more broadly, of conformity with criminal laws.  As we discussed these ideas, we kept encountering empirical studies of deterrence that, though important, did not test or alter the classical account of deterrence that has held sway for over 250 years.  Moreover, in reviewing the literature, it became clear that a basic question was getting lost:  Do legal punishments deter?

There are many potential explanations for this situation.  Until the twentieth century, one might point to the absence of social sciences that would supply the tools necessary for investigating deterrence in a rigorous and credible manner.  There is, too, the problem of assumptions.  For many people, it may seem obvious that punishment necessarily deters, so why bother studying it?  In recent decades, additional explanations may provide part of the explanation.  For example, increased pressure on university and college faculty to publish journal articles may push researchers to examine narrowly focused questions.  Whatever the reason, the result is remarkable—deterrence theory has remained largely the same since the time of Beccaria and Bentham.  And, despite a great deal of research, it remains unclear whether legal punishments deter crime or, more precisely, under what conditions they do so.

Our discussions made it clear that we were on to something bigger than an essay that identified a few interesting issues.  Beccaria and Bentham had created an amazing and well-crafted account of deterrence.  Nonetheless, there also were basic problems with their account of deterrence, and it was clear that these problems had persisted to the present.  A big problem:  Many empirical studies were missing critical aspects of deterrence, raising questions about what really is known about deterrence and deterrence-based policies.  A larger implication, though, was the need to develop a fuller, more complete theory of deterrence.  Here, fortunately, we were in luck.  Several lines of scholarship pointed to some ways in which the theory could be reconceptualized to provide just such an account of when and how legal punishments deter.

The ultimate outcome of our collaboration was a reconceptualization of the theory of deterrence that Beccaria and Bentham set forth long ago.  We named it “comprehensive deterrence theory” (CDT) because it includes all the conditions—what we characterize as “intrinsic elements”—that always inhere in deterrence.  In the course of developing the theory, we identified ways that it had relevance for policy.  The theory has, for example, profound implications for assessing existing research and deterrence-based policies.  And the theory provides a foundation for advancing knowledge and efforts to punish in ways that might more effectively prevent or reduce crime.  Our interest was and is not, we hasten to add, in promoting more deterrence-based policy.  Indeed, we argue that deterrence may not be the most effective way to improve public safety.  We recognize, though, that deterrence will likely always be a justification for many crime and justice policies.  Accordingly, guidance about how to improve deterrence, or to avoid unintentionally increasing crime, should be all to the good.