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Prisons: The Myth of Deterrence | Instead of Prisons (1976)

Myth: Prisons deter crime in two ways: They deter would-be criminals who decide not to take the risk. They discourage prisoners from criminal activity after their release.

Reality: The assumption that prisons deter crime at all is highly suspect Prisons might deter a very small percentage of those who have done time but they encourage post-release crime in a far greater number of ex-prisoners.

Deterrence and punishment are replacing rehabilitation as the stated rationale for incarceration. Since deterrence was always an implicit goal of rehabilitation, this policy shift is a slight one. A policy of deterrence merely cloaks the continuation of punishment motivated to some degree by the desire for retribution.

Despite its paramount importance in penal policy, the success of deterrence is never really examined for fear that it may prove to be a fantasy. In the same way, retribution is never really examined for fear it may be a fact.

Little statistical data supports the deterrent assumption and little has been sought, in spite of an expanding literature from psychologists who generally believe that rewarding desired behavior is more effective than punishing undesired behavior. Why, then, does the public maintain “a childish faith” in punishment as a crime deterrent? The longest prison sentences are reserved for those least likely to repeat their crimes, revealing intentions other than deterrence. That “childish faith” should be scrutinized for other motives.

Those who have examined the prison/deterrence relationship seem to agree on one point: “[C]ertainty and swiftness, not severity of punishment, have the greatest deterrent effect.” Not only is this thesis unproven, but it remains unworkable since both certainty and swiftness are not possible in the criminal (in)justice systems.

Difficulty in grading deterrence

In addition to the dearth of data on deterrence, other difficulties in evaluating deterrence include:

• Measuring deterrence by comparing the number of lawbreakers to the number of people who obey the law due to fear of penal sanctions. It is impossible to measure the latter and unreliable to count the former since the majority of law breakers within the population are unapprehended.
• Failing to account for other forces of socialization besides penal sanctions which encourage or discourage conformity with noncriminal behavior.
• Basing “evidence” on deterrence mostly on parole recidivism rates, a method which is now under serious challenge.
• Sorting out the factors relevant to crime deterrence is overwhelmingly complex. These include the economic, social, and psychological factors and individual responses to actual or threatened punishments, as well as:

“[T]he type of crime, the extent of the knowledge that the conduct is a crime, the incentive to commit the crime, the severity of the threatened punishment and the extent to which the penalty is known, and the likelihood that the offender will be caught and punished. The variety and complexity of these variables, the difficulty of isolating for study a class of potential future violators, and the problem of how to vary the severity and probability of punishment in order to determine the relative effectiveness for different policies, pose such formidable research problems that it is unlikely we will gain definitive data, at least for a very long time.”

— Struggle for Justice, pp. 56-57

Theories of deterrence

“Punishment is not a deterrent. The system taught me to function inside of the walls. The deterrent against my going back to prison is not the punishment but the fact that for the first time in my life I have met people who have indicated that there is goodness in me … the deterrent is that I would he so totally ashamed of committing a crime because people love me and I would have let them down. Most important, though, I would have let myself down.”

– Chuck Bergansky, Fortune News, April 1975

There are two theories of deterrence: special and general. The theory of special (or specific) deterrence contends that some form of punishment will teach the individual a lesson. In terms of penal sanctions it holds that an individual is unable to commit crimes against the public while incapacitated in prison; and that upon release from prison, the individual is deterred from committing new crimes, because of his/her unpleasant prison experience.

General deterrence theory applies to society at large: it assumes that crime is prevented by the threat of unpleasant consequences and repeatedly reinforces that threat by subjecting certain criminals to imprisonment. General deterrence is assumed to exert the stronger deterrent effect over mass behavior.

Theoretically, the effect of a prison sentence given to one burglar, for example, could be both special (to discourage him/her from post release burglary) and general, (to discourage potential burglars from taking the risk).

Problems with special deterrence

It seems obvious that prisoners are prevented from committing street crimes while warehoused, but it is far from obvious that prisoners are deterred from committing future crimes upon release. For the few that get caught and imprisoned, the prison experience probably encourages crime rather than deterring it:

“[T]he recidivist rate is so large, with the repeat crime often progressively more serious than the original one, that for some imprisonment seems an encouraging rather than a deterring factor.”

– Willard Gaylin, Partial Justice, p. 20

“No study that I have ever seen, and there are many, provides any assurance that the prison reduces crime, while there is ample evidence that the fact of imprisonment is a heavy contributor to post-release criminal activity.”

— William Nagel, The New Red Barn, p. 149

These statements are confirmed by many studies including a comprehensive study on probation completed in 1970, which concluded:

“[A]lmost two-thirds of those offenders placed on probation had, one year later, no known subsequent arrest, while less than one-half of those sent to prison had been equally successful. These differences in ’‘success” persisted even when one took into account the sex, age, race, offense, and prior record of the offender.”

Problems with general deterrence

It is extremely risky to draw conclusions about general deterrence. Most people remember at least one time when they decided not to commit a crime only because they feared getting caught. The decision to commit the crime of highway speeding often depends on the perceived likelihood of being apprehended. But speeding is uniquely simple. The driver can usually determine whether a law enforcement officer is near, s/he knows both the penalties and benefits of the act and has the opportunity to weigh the risks.

Most decisions to commit crimes are far more complex. Among the many factors are the need or greed for money and the spontaneous or compulsive acting out of violent feelings. Murder, for example, is considered among the least deterrable of crimes, regardless of the penalty, because most murders occur without premeditation between spouses, friends and acquaintances.

Most decisions to commit crimes lie between the extremes of speeding and murder. Deterrence theory “assumes a marginal class of people for whom the punishment will be a factor, consciously or unconsciously, in influencing their conduct, directing them toward or away from a crime.”

Surveys of punishment in Europe concluded that “[T]he policy of punishment and its variations have no effective influence on the rate of crime.“ Thorsten Sellin, emeritus professor of sociology at the University of Pennsylvania, found in his study of capital punishment that crude homicide rates appear the same regardless of a statutory death penalty; that the rates did not change significantly in states which abolished or restored it; and that homicide rates remained stable in cities where “executions occurred and were presumed to have been publicized.” One student traced a rise in the murder rate in California preceding executions, just as one political assassination attempt seems to spur others.

In 1961, California greatly increased penalties for attacking police. Yet according to a follow-up study by the California Assembly Committee on Criminal Procedure, by 1966 police were almost twice as likely to be attacked. More recently, severe drug laws adopted in New York have failed to reduce drug related crime, tho they succeeded thru increased judicial burdens in undermining “the efficiency and functioning of the criminal justice system.”

In addition to strong doubts about the practical efficiency of general deterrence, there is a serious moral question involved. Does society have the right to punish one person in order to deter another? We believe that the answer is no.

It is clear that imprisonment fails to reduce the rates of crimes most feared by the public. Severe penal policies reflect public fears but they do not reduce crime. Penalties cannot counterbalance the deeper causes of so-called criminal behavior.

As long as prison punishment and control are equated with crime deterrence, it will be the task of abolitionists to disprove this myth. Society’s energies are better focused on deterring crime at its cultural and structural sources.

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