Crime and the Certainty of Punishment

Fisher Ames, an American political leader in the late 1700s, stated, "The certainty of punishment is the truest security against crimes." The most recent bout of "get tough on crime" laws (e.g. "three strikes and you're out" and mandatory minimum sentencing) depicts an ideology similar to Ames's thoughts two hundred years ago. Unfortunately, the relationship between certainty of punishment and crime rates doesn't seem to be quite that simple.

Before continuing, there are two main ideas that warrant defining: "certainty of punishment" and "crime rate." Breaking it down further, "certainty," as defined by The American Heritage Dictionary of the English Language, is "something that is clearly established or assured." According to Webster's Revised Unabridged Dictionary, "punishment" is "any pain, suffering, or loss inflicted on a person because of a crime or offense." And in its most basic sense, "crime" is simply "unlawful activity" (The American Heritage Dictionary of the English Language). Hence, "crime rate" is the ratio of unlawful activities in an area to the population of that area.

In 1998 Morgan O. Reynolds, a professor of economics at Texas A&M University and director of the Criminal Justice Center at the National Center for Policy Analysis, wrote that serious crime had decreased in most towns and cities across the country. Reynolds reported that "between 1992 and 1996, the national murder rate fell 20%, the overall violent crime rate 16%, and the reported burglary rate 19%."[1] He attributes the decline to offenders responding to incentives and deterrence working. Specifically, he refers to "expected punishment." Expected punishment, according to Reynolds, is the price of committing a crime and is based on the probability of arrest, the probability of conviction after an arrest, the probability of imprisonment after conviction, and the average time served by those who go to prison. Because this expected punishment has moved upward since 1980 and the rate of serious crime has leveled off and then declined during the same period of time, Reynolds is convinced that "crime is down because punishment is up." Not surprisingly, two years later Reynolds summed up the same points in an article titled "Certainty of Punishment Equals Less Crime," which focused specifically on Texas and their crime rates.[2]

Lawrence W. Sherman, president and founder of the Crime Control Institute in Washington, DC, and Professor of Criminology at the University of Maryland at College Park, maintains that the question of whether or not punishment controls crime is not what we should be asking. Rather, he suggests what he believes to be a far more useful question: "under what conditions does each type of criminal sanction reduce, increase, or have no effect on future crimes?" Answering this question, he states "is central to the future of research on crime and delinquency."[3]

Sherman draws on criminologist John Braithwaite's idea that criminal sanctions can be administered in either a "reintegrative" or "stigmatizing" manner. The former projects social shame on the act whereas the latter shames and rejects the perpetrator. Interestingly, reintegrative shaming controls crime while stigmatic shaming increases it.[4] Sherman elaborates by citing another criminologist, Tom R. Tyler. Tyler distinguished between sanctions people perceive as fair or unfair. Fair sanctions increased compliance with the law by affirming the legitimacy of law enforcement, but unfair sanctions reduce compliance by reducing legitimacy.[5]

Sherman adds his own flavor to the ensemble and refers to the new integrated theory as a "defiance" theory. Defiance theory categorizes response to sanctions, or certainty of punishment, into three different levels of analysis:

1. Sanctions provoke future defiance of the law (persistence, more frequent or more serious violations) to the extent that offenders experience sanctioning conduct as illegitimate, that offenders have weak bonds to the sanctioning agent and community, and that offenders deny their shame and become proud of their isolation from the sanctioning community.
2. Sanctions produce future deterrence of law-breaking (desistance, less frequent or less serious violations) to the extent that offenders experience sanctioning conduct as legitimate, that offenders have strong bonds to the sanctioning agent and community, and that offenders accept their shame and remain proud of solidarity with the community.
3. Sanctions become irrelevant to future law breaking (no effect) to the extent that the factors encouraging defiance or deterrence are fairly evenly counterbalanced.

The key to Sherman's theory is that "similar criminal sanctions have opposite or different effects in different social settings, on different kinds of offenders and offenses, and at different levels of analysis." He argues that individual factors such as personality type, age, and employment status all affect an individual's response to sanctions. For example, he cites a study done by Elijah Anderson where he observed two groups of Black male adult patrons of a Chicago bar in the early 1970s. He noted that the mostly employed "regulars" wished to avoid trouble with police at all costs, but the mostly unemployed "hoodlums" relished police encounters and would brag about battles with them. Although regulars would commit minor crimes, they drew the line at crimes that would attract police attention; fearing arrest may threaten their employability. Hoodlums had longer criminal records from stickups, burglaries, and other crimes that invited police attention. They welcomed trouble with the law to prove their toughness.[6] Obviously there is no clear line to be drawn between the certainty of punishment and crime rates across all sectors of a community or all levels of social strata.

Lawrence W. Sherman's defiance theory melds well with the theories of numerous criminologists. The idea that sanctions can provoke future defiance of the law - the first level of analysis - hearkens back to the ideas of Emile Durkheim who believed that a society's fringe behavior would always be considered criminal regardless of its moral wrongness. Under Durkheim's theory of social positivism the perpetrator may not see his or her actions as wrong, but may even feel a moral duty to act in violation of the law (consider his example of the Greek philosopher Socrates, who was considered a criminal and put to death for corrupting the morals of youth simply because he expressed ideas that were different from what people believed at that time).[7] Under these conditions certainty of punishment could do little to dissuade the actor, and in a sense the law is to blame for the crime, not the criminal.

Karl Marx would agree with the idea that the laws, or at least those who make the law, are to blame. Although Marx specifically blamed the capitalist system for crime problems, conflict theory can apply to any group in power who use the laws to maintain social power and further their own ends. Again, under these theories, people commit crime not after balancing their chances of punishment against the possibility of escape, but because they must - their situation and position in life dictate it, and the law makes it criminal.

Even truer to the point is sociologist Robert Merton's theory of anomie - a lack of norms or clear social standards.[8] He found that culturally defined goals and socially approved means for obtaining them could clash to produce anomie. Most notably, he describes a group of people who rebel and substitute an alternative set of goals and means for conventional ones. In their case, certainty of punishment would only increase their rate of offending.

Merton's rebellious differs only slightly from the idea of a subculture under the cultural deviance theory. The cultural deviance theory holds that "because of strain and social isolation, a unique lower-class culture develops in disorganized neighborhoods. These independent subcultures maintain unique values and beliefs that conflict with conventional social norms. Criminal behavior is an expression of conformity to lower-class subcultural values and traditions, not a rebellion from conventional society. Subcultural values are handed down from one generation to the next in a process called cultural transmission."[9]

In light of the many theories noted above, it is easy to understand why the certainty of punishment might not affect the crime rate as dramatically as Fisher Ames suggested. However, as Sherman's second point illustrates, a certain segment of society can and will be swayed from criminal conduct by the threat of criminal sanctions. Classical criminology, now rational choice theory, suggests that possible criminal offenders weigh the potential costs of a criminal act against the potential gain and make a rational decision based on the evidence at hand. Cesare Beccaria pioneered classical criminology and believed that "in order for punishment to be effective it must be public, prompt, necessary, the least possible in the given circumstances, proportionate, and dictated by law."[10]

Further, in order for punishment to deter crime, the would-be criminal must consider that he might be caught and weigh the possible consequences of arrest, prosecution, and punishment against what he has to gain from committing the crime; and find the negative aspects to be the weightier of the two. Every person has a different idea about how likely he or she is to get caught, and how bad things would be if they were caught. Researchers Harold G. Grasmick and Robert J. Bursik Jr. elaborate on this concept they call perceived threats.

Like legal sanctions, these threats have the dimensions of both certainty and severity. When contemplating an illegal behavior, actors consider both the likelihood (i.e., certainty) of shame and of embarrassment and how painful these emotions would be (i.e., severity) should they occur. As with the threat of legal sanctions in conventional deterrence theory, perceived threats of shame and of embarrassment are captured by the products of their perceived certainty and severity.[11]

In the end, criminal sanctions will only be an effective crime deterrent insomuch as they are known and believed to be certain and swift. Unfortunately, the criminal justice system we employ in the United States with its necessary due process and caveats such as the exclusionary rule can never truly be either of these two. Perhaps this helps explain why there has been a paradigm shift in the law enforcement arena in the last decade, with more emphasis being given to proactive and preemptive programs such as community policing... But that is a subject for another paper.

End Notes

[1] Reynolds, Morgan. "Crime is Down Because Punishment is up." Human Events 54.2 (1998): 22.

[2] Reynolds, Morgan. "Certainty of Punishment Equals Less Crime." Human Events 56.46 (2000): 13.

[3] Sherman, Lawrence. "Defiance, Deterrence, and Irrelevance: a Theory of the Criminal Sanction." Journal of Research in Crime & Delinquency 30 (1993): 445-474.

[4] Braithwaite, John. Crime, Shame and Reintegration. Cambridge: Cambridge University Press, 1985.

[5] Tyler, Tom. Why People Obey the Law. New Haven: Yale University Press, 1989.

[6] Anderson, Elijah. A Place on the Corner. Chicago: University of Chicago Press, 1978.

[7] Durkheim, Emile. Rules of the Sociological Method. Trans. W.D. Halls. New York: Free Press, 1982.

[8] Siegel, Larry. Criminology: the Core. Belmont: Wadsworth, 2002.

[9] Ibid., 123.

[10] Wolfgang, Marvin. Patterns in Criminal Homicide. Philadelphia: University of Pennsylvania Press, 1958.

[11] Grasmick, Harold, and Robert Bursik Jr. "Changes in the Sex Patterning of Perceived Threats of Sanctions." Law & Society Review 27 (1993): 679-706.