Sentencing - Deterrence

Sentencing in Criminal Cases ?? a Series

Part II

This is the second part of our discussion on the principles applied by judges when sentencing criminals.  Some of the main principles are denunciation, general and specific deterrence, protection of the public and rehabilitation.  Last week, we examined rehabilitation.  This week, we will look at general and specific deterrence. The theory of deterrence is that people will be less likely to commit a crime if they understand that there will be serious consequences if they do.  Of course, the theory only works if the consequences of being caught are more severe than the perceived benefits of committing the crime (whenever they may be).

There are two kinds of deterrence that are considered by the courts: specific and general deterrence.  Specific deterrence is the idea that the punishment for a crime should specifically deter the particular offender from offending again.  In other words, the punishment should "teach them a lesson" so that they understand the consequences of their actions and they will think of the consequences the next time they are tempted to break the law.

General deterrence refers to the effect on the general public when they see how a particular offender has been punished.  The idea is that someone (who has not necessarily been an offender before) will be discouraged from committing a crime because they remember what happened to someone else when the other person was caught for the same crime.

Naturally, there are some problems with these theories.  First, there are some crimes committed in the heat of the moment.  In other words, some people commit crimes in situations where there is no time to think, or the nature of the situation is such that the person does not think logically about their actions.  "Crimes of passion" are largely unaffected by the concept of general deterrence, because emotions tend to run so high that logical thought does not prevail.

Secondly, there is the problem that most criminals do not believe they will be caught. Anyone who commits a crime with the belief that they will be caught and severely punished isn't that bright to begin with!  Mind you, one could argue that people that commit crimes in the belief that they will not be caught are not much brighter.

Deterrence is not likely going to be a factor in the mind of someone who does not believe that he will be caught. Despite all this, is important that the courts, when sentencing individuals, make sure that the punishment makes both the offender and the general public realize that crime doesn't pay.  If, after a sentence has been handed down, the offender and the public say to themselves: "wow, that wasn't worth it", then the sentence has achieved the goal of general and specific deterrence.

As I cautioned last week, it is always important to remember that deterrence is just one of many principles to be applied when the sentencing offenders.  It will have very little impact in certain offences and will be a much larger factor in other offences.