CRIMINAL JUSTICE AND SECURITY: DO PUNITIVE SANCTIONS REALLY DETER CRIME? By Lindsey Pointer

A very common reason that people give for supporting harsh punishments in the criminal justice system is that they will deter future crime, both by the offender and the community as a whole. This idea has a long history. Michael Foucault explains that prior to the eighteenth century, ceremonial punishments were used to re-establish the authority of the king and the presence of an audience for both the trial and the punishment was considered very important. As Foucault says, “A secret punishment is a punishment half wasted.”[1] The spectacle of punishment was directed not principally at the offender, but at the watching community, as a way to communicate the terrifying consequences of deviancy. As Mitchel Roth notes, in this context, the meaning of “reform” applied to those who witnessed the punishment, not those who suffered it.[2]

Today, the mainstream justice system continues to try to prevent criminal behavior through threatening punitive sanctions,[3] but there is actually very little evidence to back up the assumed effectiveness of this approach. As Rock notes, “Legal theorists and practitioners themselves frequently confess that they do not know (and cannot propound a strategy for learning) about the wider effects of sentencing. There is little understanding of the impact of deterrence on individual offenders and would-be offenders.”[4]

We do, however, know a bit about the impact sentencing has on offenders. As Rock explains,

There is limited, almost casual evidence about one of those immediate audiences of sentencing – the offenders – and it would appear that they are not always impressed by the ceremonial work of the courts. Naive offenders may be too numbed, detached or ill at ease at the point of sentencing to respond appropriately (Ericson and Baranek 1982). Persistent offenders may be too cynical, too alert to the game-like, negotiated character of the underlife of criminal justice, to be impressed by what they see and hear. Theirs is a propensity, argued Coffey and Eldefonso (1975), to regard trials not so much as authoritative rituals but as contests to win or lose. Those offenders who eventually decide to desist from crime may have been struck less by an onslaught of moral doubt than by the personal belief that, with ageing, the costs and benefits of offending have begun to change to their disadvantage (Shover 1996: 142).[5]

Punitive sanctions, therefore, rarely lead to the decision to desist from crime.

So, what is the best way to deter future crime and keep our communities safe? Restorative justice programs, throughout Colorado, the United States, and abroad, have been shown to greatly reduce rates of recidivism. RJ Colorado reports re-offence rates following restorative justice of just 10%, down from a national average of 60% with conventional justice approaches.[6] This is done through bringing the offender, victim, and community together to talk about the impact of the crime and what is needed to make things right. The participants come to understand and connect with each other, experiencing a transformation of emotions and relationships that leads to future pro-social behavior. The best way to keep communities safe is, in fact, to have a response to crime that builds understanding and compassion.

[1] Michael Foucault, Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1977), 111.

[2] Mitchel Roth, An Eye for an Eye: A Global History of Crime and Punishment (London: Reaktion Books, 2014), 106.

[3] Tom Tyler, “Restorative Justice and Procedural Justice: Dealing with Rule Breaking,” Journal of Social Issues 62, no. 2 (2006): 309.

[4] Rock, “Rules, Boundaries and the Courts,” 595.

[5] Rock, “Rules, Boundaries and the Courts,” 596.

[6] https://www.rjcolorado.org/restorative-justice/

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