“Enough is enough,” US senator Elizabeth Warren wrote on her Facebook page in February 2016. Prosecutors had reached yet another settlement with yet another big Wall Street bank (this time Morgan Stanley) for criminal misconduct. As she explained, “These guys broke the law, and they did for the oldest reason in the books: to make more money.” In her eyes, the settlement wasn’t enough. “The company will pay a fine, and tonight every executive who plotted, planned and scammed can go home to his family, spend his fat bonus and smile all the way—no arrest, no prosecution, no jail time.” In an earlier op-ed in the New York Times she had argued, “Justice cannot mean a prison sentence for a teenager who steals a car, but nothing more than a sideways glance at a C.E.O. who quietly engineers the theft of billions of dollars.” The op-ed referred to her own review of 20 cases of corporations caught breaking the law. In only one of those 20 cases was an executive sentenced to jail. The case concerned a corporate executive, responsible for a mine accident that killed 29 people, who was sentenced to a mere three months in jail.
A few months after her Facebook post and New York Times op-ed, Senator Warren wrote an open letter to the Department of Justice criticizing it for not prosecuting nine individuals who were implicated in serious violations of federal securities and other laws in relation to the 2008 financial crisis. In the letter she noted, “Not one of the nine has gone to prison or been convicted of a criminal offense. Not a single one has even been indicted or brought to trial.” She explained, “Key companies and individuals that were responsible for the financial crisis and were the cause of substantial hardship for millions of Americans faced no criminal charges. This failure is outrageous.”
Warren’s calls for tougher punishment came when official prosecution policies had been changing. By late 2015, the Obama administration’s Department of Justice (DOJ) had already committed to major changes in how it would address corporate crime. Under its corporate crime policy, which Deputy Attorney General Sally Q. Yates introduced in a memo on September 9, 2015, the DOJ would begin prioritizing the prosecution of individual executives. As the memo explained, “One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing. Such accountability is important for several reasons: it deters future illegal activity, it incentivizes changes in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public’s confidence in our justice system.” Not even two months later, the DOJ already had its first guilty verdict against two bank executives for 28 counts of fraud and conspiracy.
The calls for punishing executives more strongly and the overall shift in DOJ policy were clearly premised on the idea that punishment will change behavior. When punishment is meted out, corporate behavior is supposed to become more compliant, which should prevent the next financial crisis or major environmental disaster. The logic is clear. If there is damaging and law-violating misbehavior, we can change it by instituting stronger punishments.
Conservatives certainly have the punitive intuition. In 1973, President Nixon remarked, “When we fail to make the criminal pay for his crime, we encourage him to think that crime will pay.” President Reagan routinely echoed Nixon: “For too many years, the scales of criminal justice were tilted toward protecting rights of criminals. Too many sentences today are inadequate and the time served too short.” President George H. W. Bush in 1989 said, “We won’t have safe neighborhoods unless we’re tough on drug criminals—much tougher than we are now.”
Democrats also developed their own tough-on-street-crime rhetoric. President Bill Clinton signed the 1994 Violent Crime Control and Law Enforcement Act, authored by Democratic senator Joe Biden. At over 356 pages, it was the largest crime bill in the history of the US. As Clinton explained when he announced the bill, “It will put police on the street and criminals in jail. It expands the federal death penalty to let criminals know that if they are guilty, they will be punished. It lets law-abiding citizens know that we are working to give them the safety they deserve.”
Politicians love punishment. Maybe they disagree on who deserves to be punished, but punishment itself is their favorite response for bad behavior. Politicians often claim that they have to support stronger punishment because the public demands it. Twenty years after Clinton’s crime bill was signed into law, NPR’s Carrie Johnson quoted Vera Institute of Justice president Nicholas Turner’s explanation of the tough-on-crime policies and the nation’s punitive instincts: “Criminal justice policy was very much driven by public sentiment and a political instinct to appeal to the more negative punitive elements of public sentiment rather than to be driven by the facts.” Johnson added, “That public sentiment called for filling up the nation’s prisons, a key part of the 1994 crime bill.”
Public sentiment is said to have driven politics. We, the public, were so afraid of crime that politicians began cracking down harder on crime to assuage our fears. Yet the above analysis omits the fact that the relation between public sentiment and politicians’ actions is not a one-way street. It does not acknowledge how decades of political speeches on crime preceding the bill likely increased the public’s fears and fed our punitive intuition. Presidential national addresses over the decades told us to be afraid of crime and that stronger, tougher punishment was the only way to keep us safe. The truth is that politicians both respond to and stimulate the public’s punitive intuition.
This is not just an American phenomenon. Consider how politicians such as President Rodrigo Duterte in the Philippines and President Jair Bolsonaro in Brazil have been able to get popular support by promising to reduce crime through brutally tough punishment. Even a liberal democracy like the Netherlands puts faith in punishment to reduce unwanted behavior. In just three weeks in the fall of 2019, Dutch minister of justice Ferdinand Grapperhaus introduced two bills to enhance sentences for public misconduct. The first bill sought to increase sentences for driving under the influence from three months to one year. And the second sought to mandate imprisonment for people found guilty of assaulting ambulance, fire, or police personnel. Equally liberal Denmark also has had a populist politics turn toward stronger punishment. It instituted a new law in 2018 doubling the punishment for crimes committed by people from 25 residential areas where residents are heavily low-income and Muslim. The law calls the designated areas “ghettos.”
Senator Warren is right that it is unfair that corporate executives receive far more lenient punishments than people who commit minor street or drug offenses, if they even get punished at all. But wouldn’t it be much better if these corporate executives never broke the law in the first place? Isn’t the core function of law to prevent harm? For law to truly keep us safe, we must look at punishment in a different way. Rather than just assess whether punishment is fair or justified, we must ask whether and how punishment shapes behavior and reduces crime.
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Fearing Punishment
Cesare Beccaria had been afraid that the world was not ready for his ideas. He feared that his short treatise on criminal justice reform would make him a pariah and subject to governmental reprisal. So he chose to publish his work On Crimes and Punishments anonymously at first. When it came out in 1764, it caused a massive shock, not just in his native Milan but also around the globe. But it wasn’t the shock he expected. Instead of decrying his ideas, the rulers of his time overwhelmingly and publicly hailed them. His work spread east to Russia, where Catherine the Great, then empress, publicly endorsed it and drew on it in issuing her Nakaz (Instruction) to Russian legislators, intending for them to create a modern criminal justice system of policing, prosecution, judges, and prisons. And Beccaria’s influence spread west to the US, inspiring American revolutionaries Thomas Jefferson, George Washington, and John Adams and their ideas for new laws. After Beccaria’s death, his work continued to influence major criminal legal reforms and movements, including France’s Napoleonic Penal Code in 1810 and Victor Hugo’s campaign to abolish capital punishment in 1848.
For law to truly keep us safe, we must look at punishment in a different way.
Beccaria’s argument was radical. He believed that criminal justice was dominated by and unfairly skewed toward the elites, and he argued that the system should be changed to treat all people impersonally and equally. He attacked the common practice of torture and called for the abolition of the death penalty. Instead of gruesome punishments, he argued for punishments that were mild and humane.
Beccaria believed in the power of punishment. Specifically, he believed that punishment was necessary to “dissuade the despotic mentality of every individual from thrusting the laws of society back into a prehistoric chaos.” But, in his opinion, the core function of punishment was to prevent crime. Any punishment that did not prevent crime he deemed to be contrary to liberal virtues, justice, and the social compact that keeps people bound together in a society. In one of his most famous lines, referring to Montesquieu, he stated, “Every punishment which does not arise from absolute necessity is tyrannical.”
Beccaria thus forced his readers to think about the effect of punishment on changing behavior. His focus was on preventing crime, reducing damaging behavior. And as such, he saw punishment not as a form of retribution or compensation for the victims but as a behavioral instrument. For Beccaria, punishment reduced crime by instilling fear in potential offenders. He explained, “Punishments, therefore, and the method of inflicting them, must be chosen, according to the amount needed to make an impression more useful and more lasting on the minds of men, and less to torment the body of the offender.”
Today we call this deterrence. Punishment ostensibly deters crime because people who experience the punishment, who witness the punishment, or even just hear about the punishment will become so afraid that they do not even think about committing the crime in the first place. This sounds simplistic, but the idea that we refrain from bad behavior because we are afraid of being punished is very similar to Supernanny’s naughty corner. It is also very much like what politicians tell us when they appeal to our punitive intuition.
Beccaria developed ideas about what drives our fear of punishment. He articulated three core elements of deterrence. The first is the severity of the punishment. The more severe the punishment, the more likely people will fear it. The second is the certainty of the punishment. The more likely rule breakers are to get caught and punished, the more likely people will fear punishment. And third is the swiftness or promptness of the punishment. The longer the time lag between breaking rules and receiving punishment, the less people will fear punishment and the less it will deter them.
For thinkers like Beccaria, punishment was also a form of pain. Like many people, then and now, Beccaria thought that humans responded to pain and pleasure. The idea was simple: people refrain from action if pain outweighs the pleasure. To prevent someone from violating the law again in the future, punish them harshly the first time they violate the law, so that the painful experience of having been punished will keep them from committing the offense again in the future. This particular form of deterrence is called specific deterrence.
Imprisonment is a perfect example of a painful form of punishment. Simply not having freedom is awful enough in and of itself, but modern-day prison conditions in the US are likely to cause real physical pain. Overall, upward of 20 percent of prisoners experience physical violence while incarcerated, and the assault rates on men in prison are almost 20 times higher than on the outside. And prisoners who are victims of assault are placed in solitary confinement, ostensibly for their own protection. Yet to make matters worse, according to the American Psychological Association, solitary confinement is associated with severe and pervasive harm to both physical and mental health, including an increased risk of self-mutilation, suicidal ideation, paranoia, and aggression.
Serving hard time seems like a strong deterrent for re-offending. But is it? Decades of criminological scholarship have analyzed whether there is a relationship between serving time in prison and the probability of re-offending. If specific deterrence works, then the more time people spend in prison, the less they would re-offend. The more painful the punishment, the greater the deterrent, and the less people should commit crimes in the future.
Imprisonment is a perfect example of a painful form of punishment.
But the evidence seems to be otherwise. Most people who have served time in prison do re-offend. One large study looking at 272,111 people who were released from US prisons across 15 states found that 68 percent had been arrested again within three years. The numbers were similar for common offenses, such as property crimes (including theft and robbery) and drug-related crimes, for which arrest rates for re-offending were 73.8 percent and 66.7 percent respectively. Three years after release from prisons in the Netherlands, over 60 percent were convicted again. And in the United Kingdom, for those two years post-release, the reconviction rate was 57 percent. And these are just the official rearrest and reconviction rates. They do not reflect the real crime rates. In fact, so much crime goes undetected that criminologists call it the “dark figure of crime.” What the dark figure of crime tells us is that if rearrest and reconviction rates hover around 60 percent across these countries, the actual re-offending rates must be shockingly high.
Yet we cannot say that prison fails to deter simply by looking at recidivism rates of those who served time. This would be a flawed reading of the data. Unfortunately, once people begin committing crime, we know they will be more likely to do so again. The question is whether serving hard time reduces such re-offending. Without imprisonment, the recidivism rates of offenders might well have been even higher. So we have to compare convicted offenders who went to prison to those who did not go to prison. The big question here is whether recidivism rates among people who did not go to prison are higher than for those who did. The best empirical studies on the specific deterrent effect of incarceration compare re-offending rates of people who are sentenced to prison time and people who had committed similar crimes (like property offenses or minor drug offenses) but received a sanction they served in their own community.
In 2000, the first major systematic review of this body of work came out. The findings were surprising. Scholars did not find that the experience of imprisonment reduced re-offending. Quite the contrary. Compared to people who had committed similar crimes but who had received community sanctions, those who had been imprisoned re-offended much more frequently. Later systematic reviews found the same thing. In fact, the latest review of the available evidence looked at 57 rigorous studies and found not only that imprisonment fails to decrease re-offending but that it actually increases crime. This review concluded that incarceration raises the rate of re-offending to somewhere between five and 14 percent.
By and large, studies do not find that incarceration has a specific deterrent effect. In perhaps the most perfectly titled paper, “Prisons Do Not Reduce Recidivism: Ignoring the High Costs of Science,” criminologist Francis Cullen and colleagues clearly state that “incarcerating offenders is not a magic bullet with special powers to invoke such dread that offenders refrain from recidivating when released.” “If anything,” they add, “it appears that imprisonment is a crude strategy that does not address the underlying causes of recidivism and thus that has no, or even criminogenic, effects on offenders.”
We have to realize, however, that the existing body of research is not perfect. In large part, this is because there are many challenges in measuring the effect of imprisonment on re-offending. Studies tend to use arrest rates or conviction rates to capture the amount of crimes committed, yet these statistics are incomplete because many offenses are never discovered. That’s the “dark figure of crime” problem. The other problem is that it is very hard to isolate the effect of imprisonment on re-offending because there are many other factors simultaneously influencing criminal behavior that are unrelated to punishment, such as socioeconomic conditions, opportunities for crime, and the age, gender, and personality of potential offenders.
Altogether, a conservative view of imprisonment would conclude that, despite our intuitions, there is no evidence that incarceration has a specific deterrent effect. Further, many scholars conclude that incarceration actually creates more crime. Researchers call this the criminogenic effect of punishment, meaning that imprisoning individuals promotes more crime.
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Excerpted from The Behavioral Code: The Hidden Ways the Law Makes Us Better…Or Worse by Benjamin van Rooij and Adam Fine (Beacon Press, 2021). Reprinted with permission from Beacon Press.
