Friday, 3 February 2012

Criminal Deterrence

I recently read this article on the blog Grits for Breakfast about two approaches to combating graffiti.

The issue of preventing and controlling graffiti has always been a difficult one because of the near-impossbility of adequately enforcing whatever law is in place.  What I want to talk about today is the topic of deterrence.

There are many justifications for sentencing criminals, but the most prevalent are the following:
  1. The need for punishment of wrongs;
  2. The need to remove offenders from society for society's protection (usually used to justify imprisonment or detention);
  3. The prevention of further crimes by that person (specific deterrence); and
  4. The prevention of further crimes by other people (general deterrence).
General and Specific Deterrence:
I want to talk about the last two specifically.  The concept of specific deterrence is that by punishing a person for committing a wrong, they will be deterred from committing that wrong again by the punishment they have already received.  IE once they get out of prison, or finish paying the fine, they won't want to go back and so won't commit the offences.

This has some benefit, and I am sure that in some cases it will work.  The problem is that it is now rigidly applied as if it will ALWAYS work.  The legislation in South Australia effectively allows for a severe ramping up of penalties.  This actually seems to be a self-defeating argument.  IE, if it didn't work once, maybe it will work the second time! Also, you develop the problem of jail-birds; people for whom imprisonment is not a punishment but a different residence with food guaranteed every day.  I have read cases of child-sex offenders who are deliberately seen near schools so that they will be returned to prison, where they feel safe.  Obviously in this case, there are many different issues to address, but the point remains that specific detterence needs to be flexible. 

The biggest problem with specific deterrence is that if it doesn't work the first time, it WON'T work the second time.  Yet we still see jurisprudential writers touting it as the supreme justification for imprisonment.

The concept of General Deterrence is one of my greatest bug-bears, and one of parliament's favorite tools.  The government can point to increased penalties for drink driving, family abuse, etc, and say "We are tough on crime!"  Yet year after year we see money cut from enforcement budgets, and a slow build-up of offences, clogging the court system.

The theory of General Deterrence says that we don't commit crimes because we consider that X commited a crime and his punishment was extreme, therefore I don't want to go to jail, so I won't commit the crime.

An interesting concept is to decide why YOU personally don't commit crimes.  Consider the crime of assault.  Do you not assault your work-mates because you don't want to go to jail, or for another reason?  Do you not commit the assault because it is wrong, because you might get hurt, because you might lose your job, because if you did, he might, or even just because it is against the law?  I don't speed when I drive, not because I don't want to be caught (although that is true) but because it is against the law.  I feel offended when I see people driving at 65 in a 60 zone, not because they will get there sooner, but becuase they are breaking the law.

The biggest justification for increasing penalties is 'protecting the community.'  Yet when people commit crimes, they either don't think of the penalties, or think they can avoid them entirely.  Compare a violent crime in the heat of passion, with a considered crime like fraud.  People do NOT think "oh, I might go to jail" when they are in a fight, or in a blinding rage at their partner.  So in cases of passion, general deterrence simply does not work.  Doesn't that account for most violent crimes?  (Mob or organised crime aside).

Compare that to a person drawing fraudulent cheques.  They don't think "I shouldn't do this because the penalty has just doubled."  If they think about it at all, it will be "I don't want to be caught."

So we need to consider other tools to prevent crime.  In Grit's article, he talks about engaging a graffiti artist professionaly, and protecting the area from further graffiti by putting something spectacular there.  There are other ideas such as 'graffiti walls' in Prospect, where youths (and adults) are encouraged to practise their art.  Obviously this doesn't solve the problem, but it is a far more productive method of combating the issue.

I would love to see some other ideas for preventing violent crime.  Anyone for Minority Report?

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