Defined Terms

Sentencing Matters  - Does Imprisonment Deter?  A Review of the Evidence - April 2011  

Sentencing Advisory Council, Level 4, 436 Lonsdale Street, Melbourne Victoria 3000, Australia

Telephone 03 9603 9047  contact@sentencingcouncil.vic.gov.au  www.sentencingcouncil.vic.gov.au

Contents

Executive summary 1

Background 2

Deterrence in Victoria 4

Deterrence theory 7

General deterrence 12

Specific deterrence 18

Concluding remarks 23

Glossary 24

Bibliography 25

Executive summary

Deterrence can be described as the prevention of crime through the fear of a threatened – or the experience of an actual – criminal sanction. General deterrence is aimed at reducing crime by directing the threat of that sanction at all potential offenders. Specific deterrence is aimed at reducing crime by applying a criminal sanction to a specific offender, in order to dissuade him or her from reoffending.

Deterrence is only one of the purposes of sentencing in Victoria, determined by section 5(1) of the Sentencing Act 1991 (Vic). The other purposes are: Punishment, Denunciation, Rehabilitation and Community Protection (incapacitation).

The scope of this paper is limited to examining the sentencing purpose of deterrence only – it does not present an analysis of the evidence of imprisonment’s effectiveness in regard to other sentencing purposes. There is an overlap in some studies when measuring deterrence and incapacitation; however, the paper does not draw conclusions on the effectiveness of imprisonment as a means of reducing crime through incapacitation.

Deterrence theory is based upon the classical economic theory of rational choice, which assumes that people weigh up the costs and benefits of a particular course of action whenever they make a decision. Deterrence theory relies on the assumption that offenders have knowledge of the threat of a criminal sanction and then make a rational choice whether or not to offend based upon consideration of that knowledge.

Rational choice theory, however, does not adequately account for a large number of offenders who may be considered ‘irrational’. Examples of such irrationality can vary in severity –  there are those
*        who are not criminally responsible due to mental impairment,
*        who are drug affected or intoxicated; and
*        who simply act in a way that is contrary to their own best interests.

Research shows that the majority of offenders entering the Victorian criminal justice system have a history of substance use that is directly related to their offending.

That people are not perfectly rational and do not always make decisions that are in their own best interests is supported by studies in behavioural economics. Behavioural economic theory proposes that individuals make decisions on the basis of imperfect knowledge by employing ‘rules of thumb’, rather than strict logic, and are subject to limits on their willpower. People are also subject to a great number of patterns of deviation in judgment that occur in particular situations (known as ‘cognitive biases’), which influence decision-making in predictable – but often irrational – ways.

The evidence from empirical studies of deterrence suggests that the threat of imprisonment generates a small general deterrent effect. However, the research also indicates that increases in the severity of penalties, such as increasing the length of terms of imprisonment, do not produce a corresponding increase in deterrence.

It has been suggested that harsher penalties do not deter because many crimes are committed in circumstances where it is difficult to identify when, or if, offenders have considered the consequences of their criminal behaviour. In addition, otherwise rational individuals are more strongly influenced by the perceived immediate benefits of committing crime and individuals ‘discount’ the cost of future penalties.

A consistent finding in deterrence research is that increases in the certainty of apprehension and punishment demonstrate a significant deterrent effect. Perceptions about the certainty of apprehension, for example, may counter the ‘present bias’ and reinforce the potential cost of committing crime. This result is qualified by the need for further research that separates deterrable from non-deterrable populations.

Research into specific deterrence shows that imprisonment has, at best, no effect on the rate of reoffending and often results in a greater rate of recidivism. Possible explanations for this include that: prison is a learning environment for crime, prison reinforces criminal identity and may diminish or sever social ties that encourage lawful behaviour and imprisonment is not the appropriate response to many offenders who require treatment for the underlying causes of their criminality (such as drug, alcohol and mental health issues). Harsh prison conditions do not generate a greater deterrent effect, and the evidence shows that such conditions may lead to more violent reoffending.

The empirical evidence on the effectiveness of imprisonment as a deterrent to crime suggests that the purposes of sentencing should be considered independently – according to their own merits – and that caution should be exercised if imprisonment is to be justified as a means of deterring all crimes and all kinds of offenders.

Introduction

Deterrence is only one of the purposes of sentencing in Victoria.

However, the intuitive basis of deterrence – that the punishment of an offender stands as a threat to both the offender and to others, and so reduces the further commission of crime – is compelling and, at first glance, seems uncontroversial.

Nevertheless, the ‘intuitive appeal’ (Varma and Doob, 1998,

p. 167) of the effectiveness of deterrence is insufficient for the

development of sound criminal justice policy and, ultimately, the

imposition of just sentences. Instead, an analysis of the evidence

regarding that effectiveness is required.

Sentences in Victoria may be imposed for one or more of the

following purposes: punishment, denunciation, rehabilitation,

community protection and deterrence. These purposes can be

separated into two groups on the basis of the effects they are

intended to achieve.

In the first group, punishment and denunciation can be seen

as direct responses to the criminal behaviour. Punishment is a

form of redress against the moral imbalance caused by crime –

inflicting upon an offender a sanction that is in proportion to

the harm he or she has caused. Denunciation is a statement to

the offender (and to the community at large) that such criminal

behaviour will not be tolerated.

In the second group, rehabilitation, community protection and

deterrence act as more than simply responses to the criminal

behaviour and are intended to achieve the outcome of a

reduction in the future commission of crime.

There is often tension between these purposes, and they can

conflict. For example, the purpose of rehabilitation may best

be satisfied by the imposition of a community-based sentence,

which maintains an offender’s links with family and community

(including possible employment) and allows broader access to

drug or alcohol treatment services. However, such a sentence

may fail to sufficiently punish an offender or adequately

denounce his or her offending behaviour.

A sentencing court must engage in the challenging and complex

task of considering the circumstances of each case and assigning

a particular weight to each sentencing purpose, in light of those

circumstances.

The question of what weight should be given to each purpose is

informed by both precedent and by the available evidence. If a

sentencing purpose is intended to result in a reduction in crime,

then in order to determine what weight should be given to that

purpose, it is critical to examine the evidence of whether or

not – or the extent to which – that goal of crime reduction

is achieved.

Background

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Donald Ritchie 3

The significance of deterrence to sentencing in Victoria is

apparent from a consideration of sentence appeals. The

Sentencing Advisory Council recently undertook a statistical

analysis of the grounds relied upon by the Crown in sentence

appeals. That analysis reveals that, of the 34 Crown appeals in

the 2008 calendar year, in addition to other grounds (such as

manifest inadequacy), failure to give sufficient weight to general

deterrence was raised as a ground in 73.5% of appeals and failure

to give sufficient weight to specific deterrence was raised as a

ground in 61.8% of appeals. In those appeals where the grounds

of failure to give sufficient weight to general deterrence or failure

to give sufficient weight to specific deterrence were raised, the

grounds were successful or considered favourably by the Court

of Appeal in 44.0% and 33.3% of cases, respectively.

Although imprisonment is only one of a number of available

sanctions, it is the most severe form of penalty that can be

imposed by a court when sentencing an offender in Victoria. In

the year from September 2009 to September 2010, the number

of people imprisoned in Victoria increased by 3.8% (Australian

Bureau of Statistics, 2010a, p. 11). While Victoria had the

second-lowest rate of imprisonment of any Australian jurisdiction

during that year, the increase reflects a long-term trend. Since

1977, the imprisonment rate has shown a continual upward

trend (Freiberg and Ross, 1999), and in the decade between

1999 and 2009 the imprisonment rate in Victoria increased by

28.7%, from 81.4 per 100,000 of the adult population (Australian

Bureau of Statistics, 2001, p. 8) to 104.8 per 100,000 of the adult

population (Australian Bureau of Statistics, 2010a, p. 12).

At the same time, global and local economic pressures have

forced many jurisdictions to reassess the effectiveness of

imprisonment and to examine the ability of imprisonment to

achieve the purposes of sentencing.

In light of Victoria’s increasing rate of imprisonment, the significant

investment of public resources that this requires and successful

submissions by the Crown to the Court of Appeal for increased

imprisonment on the basis of general and specific deterrence,

it is important to explore the empirical evidence as to the

effectiveness of imprisonment in achieving deterrence in practice.

As deterrence is just one purpose of sentencing in Victoria,

a consideration of the evidence demonstrating the deterrent

effect of imprisonment does not determine the legitimacy of

imprisonment for other purposes. Further, the sanction of

imprisonment is only one of the sentences that may be imposed

by a court for an offence. Other sanctions include intensive

correction orders, community-based orders and fines. However,

as imprisonment is the most severe, iconic and resource

intensive, and the one most commonly believed to be effective in

achieving deterrence, it is the focus of this paper.

Scope of the paper

This paper reviews the current empirical studies and

criminological literature regarding the effectiveness of

imprisonment as a deterrent to crime. This paper examines the

empirical evidence and criminological studies that have sought to

examine such questions as: Does the threat of imprisonment in

fact deter potential offenders? Does an increase in the severity

of penalties result in a corresponding decrease in offending?

Does the experience of imprisonment deter offenders from

reoffending after they are released from prison, or does it make

them more likely to reoffend?

The paper examines the current role of deterrence in the

sentencing process in Victoria. The paper then briefly reviews

classical deterrence theory and its development by modern

economic theory. It discusses the implications for deterrence

of more contemporary perspectives, including the critique

of classical economic theory by behavioural economics. The

paper examines the findings of recent empirical research on the

concept of general deterrence, including absolute and marginal

deterrence and the deterrent effect of changes to punishment

certainty and punishment severity. Finally, the paper examines

the findings of recent empirical research on specific deterrence

and the effect of imprisonment upon recidivism and reoffending.

That section also includes a discussion of studies relating to the

specific deterrence of young offenders.

4

The Victorian sentencing process

The Sentencing Act 1991 (Vic) is the principal source of legislative

guidance on sentencing in Victoria. The Act sets out the

purposes of sentencing, establishes a basic process of sentencing

and details the various factors that the court must consider

when sentencing an offender. The Sentencing Act 1991 (Vic) is

supplemented by a number of other Acts that prescribe and set

out the maximum penalties for criminal offences.

The courts are also guided by sentencing principles established

in common law (Fox and Freiberg, 1999, p. 29), including the

principles of totality and proportionality. Although there is

relatively broad judicial discretion in Victoria, allowing a court to

determine a sentence that is particular to the offender being

sentenced, the courts have been restricted by the legislature to

sentence only for the purposes listed in the Sentencing Act 1991 (Vic).

Deterrence in sentencing

Section 5(1) of the Sentencing Act 1991 (Vic) states that the only

purposes for which a sentence may be imposed in Victoria are

to provide just punishment, to manifest denunciation, to facilitate

rehabilitation, to protect the community from the offender and –

in section 5(1)(b) – ‘to deter the offender or other persons from

committing offences of the same or a similar character’.

Even prior to its statutory formulation as one of the purposes of

sentencing, the Victorian Court of Appeal identified deterrence

as having an important role in sentencing. In R v Williscroft,1 the

court quoted the New Zealand case of R v Radlich,2 stating:

one of the main purposes of punishment … is to protect the public

from the commission of such crimes by making it clear to the

offender and to other persons with similar impulses that, if they yield

to them, they will meet with severe punishment … The fact that

punishment does not entirely prevent all similar crimes should not

obscure the cogent fact that the fear of severe punishment does,

and will, prevent the commission of many that would have been

committed if it was thought that the offender could escape without

punishment, or with only a light punishment.3

1 R v Williscroft [1975] VR 292.

2 R v Radlich [1954] NZLR 86, 87.

3 R v Williscroft [1975] VR 292, 298–299; citing R v Radlich [1954] NZLR

86, 87.

The court has recognised that general deterrence is more likely

to have an effect on crime where there is an identifiable choice –

or in effect, a series of choices – that requires consideration on

the part of the offender of the costs and benefits of the crime. In

the case of R v Perrier,4 McGarvie J stated:

There is reason to doubt whether, with some crimes and some

types of persons, sentences in reality have any general deterrent

effect. There is no reason to doubt that substantial sentences

do deter people who might otherwise be inclined to engage as

principals in the commercial importation of heroin. Those who

run businesses, legitimate or illegitimate, are constantly guided

in deciding whether to take particular commercial courses by

their assessments of the economic and other risks and costs

involved. In deciding whether to run the risk of pursuing the high

returns obtainable from the commercial importation of heroin,

the non-addict with the intelligence and ability to organise and

operate such a business must count the potential cost. If the

contingent cost includes that of forfeiting the whole or a large part

of one’s remaining life to the prison system, clearly it will operate

substantially to discourage selection of the heroin option.5

Similar comments on the application of general deterrence to

particular types of crimes were made in R v Poyser.6 In that case,

Murphy J stated that deterrence assumed greater importance

when sentencing for ‘deliberate, calculated, carefully designed

and avaricious crimes, committed by … confidence men

masquerading as men of worth’ and that ‘deterrence in such

cases is not a difficult concept to understand, however artificial it

may appear to be in … crimes of passion or drug-related crimes’.7

The Victorian Court of Appeal has acknowledged the difficulty of

advancing general deterrence. In Winch v The Queen,8 Maxwell P

and Redlich JA suggested that the effectiveness of deterrence

hinges upon communication of the threat of punishment to

potential offenders:

[The prevalence of glassing offences and the community’s concern]

alone heighten the importance of general deterrence as a sentencing

objective. They also highlight the urgent need for sentencing

decisions in cases such as this to be communicated to those

most likely to commit this kind of offence. How to make general

deterrence effective remains one of the great challenges in the

administration of criminal justice.9

4 R v Perrier [No 2] [1991] 1 VR 717.

5 Ibid 721.

6 R v Poyser (Unreported, Supreme Court of Victoria, Court of

Criminal Appeal, Murphy, Gray and Nathan JJ, 15 September 1988).

7 Ibid 5.

8 Winch v The Queen [2010] VSCA 141 (17 June 2010).

9 Ibid [43].

Deterrence in Victoria

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Donald Ritchie 5

In a speech to the Melbourne Press Club in April 2010, Chief

Justice Marilyn Warren drew attention to knowledge of penalties

being an essential requirement, saying ‘deterrence within

the community will not be achieved unless knowledge of the

sentences is conveyed to the community’ (Warren, 2010, p. 6).

The decision of the High Court of Australia in Veen v The

Queen (No 2)10 also affirmed the importance of deterrence

as a sentencing purpose but drew attention to the fact that

deterrence is just one of a number of purposes of sentencing and

that sometimes those purposes can conflict with one another. In

that case, Mason CJ, Brennan, Dawson and Toohey JJ said:

The purposes of criminal punishment are various: protection of

society, deterrence of the offender and of others who might be

tempted to offend, retribution and reform. The purposes overlap

and none of them can be considered in isolation from the others

when determining what is an appropriate sentence in a particular

case. They are guideposts to the appropriate sentence but

sometimes they point in different directions.11

While deterrence is enshrined in common law and in Victorian

sentencing legislation, there remains judicial scepticism about the

effectiveness of deterrence and in particular the effectiveness of

imprisonment to act as a deterrent. In the South Australian case

of R v Dube,12 it was acknowledged by King CJ that:

there is no proven correlation between the level of punishment and

the incidence of crime and that there is no clear evidence that

increased levels of punishment have any effect upon the prevalence

of crime.13

Despite accepting the lack of clear evidence of the effectiveness

of deterrence, His Honour remarked:

the criminal justice system has always proceeded upon the

assumption that punishment deters and that the proper response to

increased prevalence of a crime of a particular type is to increase the

level of punishment for that crime. I think that courts have to make

the assumption that the punishments which they impose operate as

a deterrent.14

10 Veen v The Queen (No 2) (1988) 164 CLR 465.

11 Ibid 476.

12 R v Dube (1987) 46 SASR 118.

13 Ibid 120.

14 Ibid.

Similarly, in the case of Pavlic v The Queen,15 Green CJ stated:

there is no justification for the view that there exists a direct linear

relationship between the incidence of a particular crime and the

severity of the sentences which are imposed in respect of it such

that the imposition of heavier sentences … will automatically result

in a decrease in the incidence of that crime.16

According to Green CJ, ‘general deterrence is only one of the

factors which are relevant to sentence and must not be

permitted to dominate the exercise of the sentencing discretion

to the exclusion of all the other factors’.17 However, the

continuing importance of considerations of deterrence to

sentencing in Victoria is evident from the recent analysis by the

Sentencing Advisory Council of the grounds relied upon by the

Crown in sentence appeals, discussed above.

Deterrence and sentencing young offenders

In Victoria, the Children’s Court has jurisdiction if the offender

was under 18 years old at the time of the alleged commission

of an offence, and is under 19 years old at the time when

proceedings are commenced. The sentencing of offenders in the

Children’s Court is governed by the Children, Youth and Families

Act 2005 (Vic), providing a particular set of matters to which the

court must have regard.

Section 362(1) of the Children, Youth and Families Act 2005 (Vic)

outlines the priorities and aims of sentencing in the Children’s

Court, including:

1. preserving relationships between the child and his or her

family;

2. the desirability of the child living at home, allowing the

continuation of education, employment or training;

3. minimising stigma from the court’s determination;

4. the suitability of the sentence to the child;

5. the need to ensure the child is accountable; and

6. the need to protect the community.

In H v Rowe,18 Forrest J affirmed that general deterrence is

not applicable to sentencing offenders in the Children’s Court,

stating: ‘The principle of specific deterrence is incorporated

within [the need to protect the community]; general deterrence

is not a relevant sentencing principle’.

15 Pavlic v The Queen (1995) 83 A Crim R 13.

16 Ibid 16.

17 Ibid.

18 H v Rowe [2008] VSC 369.

6

In the adult courts, the sentencing of ‘younger’ or ‘youthful’

offenders (although still adults for the purposes of the

jurisdiction) also involves a focus on rehabilitation rather

than general deterrence. This issue was discussed in the

recent case of Winch v The Queen19 where Maxwell P and

Redlich JA quoted the general statement of principle from

Batt, JA in R v Mills:20

In the case of a youthful offender rehabilitation is usually far more

important than general deterrence. This is because punishment

may in fact lead to further offending. Thus, for example,

individualised treatment focusing on rehabilitation is to be preferred.

(Rehabilitation benefits the community as well as the offender.)

Their Honours, however, also cited Batt JA in Director of Public

Prosecutions v Lawrence21 (with whom Winneke P and Nettle JA

agreed) and affirmed that this general principle does not always

prevail. Instead, it is sometimes the case that:

[y]outh and rehabilitation must be subjugated to other

considerations. They must take a ‘back seat’ to specific and general

deterrence where crimes of wanton and unprovoked viciousness

(of which the present is an example) are involved … This is

because the offending is of such a nature and so prevalent that

general deterrence, specific deterrence and denunciation of the

conduct must be emphasised.22

Deterrence and proportionality

As the court in Veen v The Queen (No 2)23 observed, the purposes

of imposing a sentence act as guideposts, which may sometimes

‘point in different directions’.24 This conflict of purposes

becomes apparent when comparing the sentencing principle of

proportionality with the purpose of general deterrence.

The common law sentencing principle of proportionality requires

that, when offenders are sentenced, the overall punishment

must be proportionate to the gravity of the offending behaviour.

General deterrence, on the other hand, is concerned with

threatening potential future offenders who might engage in

the same criminal conduct with the same criminal sanctions.

As von Hirsch and Ashworth (1998, p. 48) note, if general

deterrence takes precedence over proportionality, then the

19 Winch v The Queen [2010] VSCA 141 (17 June 2010) [39].

20 R v Mills [1998] 4 VR 235, 241.

21 Director of Public Prosecutions v Lawrence (2004) 10 VR 125.

22 Winch v The Queen [2010] VSCA 141 (17 June 2010) [44]; citing

Director of Public Prosecutions v Lawrence (2004) 10 VR 125, 132.

23 Veen v The Queen (No 2) (1988) 164 CLR 465.

24 Ibid 476.

‘convicted offender’s punishment is being determined entirely by

the expected future behaviour of other persons, not by his own

past behaviour’. The authors (von Hirsch and Ashworth, 1998,

pp. 46–47) point out that:

a major objection [to deterrence] has been that since its distinctive

aim and method is to create fear of the penalty in other persons, it

may sometimes require … excessive punishment of an offender in

order to achieve this greater social effect.

In other words, deterrence theory might require that a

disproportionate punishment be imposed in order to achieve the

effect of general deterrence. The problem with this, the authors

argue, is that doing so would be to ignore individual justice and

‘regard citizens merely as numbers to be aggregated in an overall

social calculation’ (von Hirsch and Ashworth, 1998, p. 47). Their

argument is not that deterrence is irrelevant, only that it cannot

be the sole justification for the imposition of a sentence, and

there must be ‘both a link with the general social justification for

the institution of punishment and principles which … place limits

on the amount of punishment’ (von Hirsch and Ashworth, 1998,

p. 47; citations omitted).

Summary

This section has examined the sentencing process in Victoria

and the purposes for which a sentence may be imposed. Specific

and general deterrence form one of the purposes prescribed

by the Sentencing Act 1991 (Vic) for which a sentence may be

imposed, reflecting an assumption that deterrence can reduce

crime. Courts have expressed scepticism regarding the efficacy

of deterrence for at least some types of offenders, and the High

Court of Australia has determined that deterrence is but one of

a number of considerations to be made when sentencing.

In Victoria, the sentencing of young persons operates under a

model that provides for specific deterrence but excludes general

deterrence as a purpose of sentencing. Deterrence can conflict

with the principle of proportionality, and seeking to impose a

sentence that deters the public at large from the commission

of an offence may result in a disproportionate sentence for the

individual offender.

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Donald Ritchie 7

What is deterrence?

At its most basic, deterrence can be described as the avoidance

of a given action through fear of the perceived consequences. In

the context of the criminal law, deterrence has been expressed

as ‘the avoidance of criminal acts through fear of punishment’

(von Hirsch et al., 1999, p. 5) and not through any other means

(Beyleveld, 1979, p. 207).

Implicit in this definition is the assumption that individuals

have a choice whether or not to commit criminal acts and,

when successfully deterred, deliberately choose to avoid that

commission through fear of punishment. The critical focus of

deterrence is on the individual’s knowledge and choice and the

way in which the criminal justice system – through the threat

and imposition of punishment – informs, and so (it is presumed)

influences, that choice.

The reliance upon choice also distinguishes deterrence from

the sentencing purpose of incapacitation. While both purposes

seek to bring about an effect upon subsequent offending,

incapacitation seeks to prevent offenders from reoffending

through the fact of their imprisonment, and as a result, their lack

of capacity to commit offences in the community. Deterrence,

on the other hand, seeks to prevent individuals from offending

through the threat of punishment.

General and specific deterrence

The criminal justice system as a whole has been shown to exert

an absolute general deterrent effect. Historical events – such as

police strikes – where there has been a lack of enforcement of

the law, coincide with a significant increase in the commission

of crime (von Hirsch and Ashworth, 1998, p. 51). However,

research suggests that individuals are most often deterred from

the commission of crime through internalised personal and

social norms and the threat of social stigmatisation or non-legal

consequences – collectively known as informal deterrence, or

‘socially-mediated deterrence’ (Wenzel, 2004, p. 550).

Some therapeutic courts – such as the Koori Court Division of

the Magistrates’ Court in Victoria – endeavour to build upon

the strength of informal deterrence by involving members of

the offender’s cultural group in the proceedings. This aims to

confer on the court cultural legitimacy and also moral authority

(Sentencing Advisory Council, 2010, p. 17), combining elements

of both formal and informal deterrence.

Historically, research has focused on general deterrence and

specific deterrence, rather than absolute or informal deterrence.

General deterrence refers to the way in which the threat of

punishment may deter the public at large from committing

criminal acts. Specific (sometimes called ‘special’) deterrence

refers to the way in which the experience of a particular

sanction may deter a particular offender from committing further

criminal acts.

The two concepts overlap: a sentence can act both as a specific

and a general deterrent – specifically deterring the offender

him- or herself, but also standing as an example or threat to

the community at large, and so acting as a general deterrent.

Similarly, an offender may be generally deterred from the

commission of crime by the threat of punishment to the same

extent as a non-offender, separate from the experience of a

previous sanction.

Research into general deterrence has often focussed on the

effect that changes to punishments (such as changes to the

severity of penalties or changes to the level of enforcement)

have upon deterrence, rather than the mere existence of

punishments themselves. Studies into general deterrence usually

seek to measure the ‘marginal’ deterrent effect of particular

changes to the law, rather than the ‘initial’ deterrent effect of

prohibiting conduct that was previously not a crime

(von Hirsch et al., 1999, p. 5).

Knowledge and deterrence

Both general and specific deterrence are subjective concepts –

they rely upon the knowledge and perceptions of the individual.

Williams and Gibbs (1981, p. 591) emphasise that the claim that

‘certain, swift and severe legal punishment prevents crimes’

ignores the fact that deterrence theory ‘is primarily a perceptual

theory’ (emphasis added). The authors question how the ‘threat

of legal punishments deter potential offenders unless they

perceive those punishments as sufficiently certain, swift, and

severe’ (Williams and Gibbs, 1981, p. 591, emphasis added).

For any sanction by the criminal justice system to act as a

deterrent, the potential offender must be aware of a number of

considerations and act on the basis of that awareness. In order to

be deterred by a sanction, a potential offender must:

1. realise that there is a criminal sanction for the act being

contemplated;

2. take the risk of incurring that sanction into account when

deciding to offend;

3. believe that there is a likelihood of being caught;

4. believe that the sanction will be applied to him or her if he

or she is caught; and

5. be willing (and able) to alter his or her choice to offend in

light of the criminal sanction (adapted from von Hirsch et

al., 1999, p. 7).

Deterrence theory

8

This analysis applies not only to the existence of sanctions, but

also to changes in their severity or certainty (discussed further

below). For deterrence to work in any manner, the conditions

above must be satisfied, as ‘knowledge of penalties logically

precedes perceptions of the certainty and severity of penalties’

(Williams and Gibbs, 1981, p. 591).

For deterrence to influence the decision-making process, the

offender must have both knowledge of the threat of punishment

for the offence and a choice whether or not to commit the offence.

Economic theory and rational choice

The classical theory of deterrence assumes that the commission

of criminal acts is the result of a rational choice. The classical

theory was developed by eighteenth-century philosophers

Jeremy Bentham (1948 [1776]) and Cesare Beccaria (1994 [1764])

and drew upon utilitarianism, a theory that held that ‘human

behaviour results from the pursuit of pleasure and the avoidance

of pain’ (Bodman and Maultby, 1997, p. 884).

This theory of rational choice, known in economics as ‘expected

utility theory’ (Mongin, 1997), assumes that any behaviour is the

result of ‘careful thinking and sensible decisions’ (Felson, 1993,

p. 1497), and criminal behaviour in particular is a result of the

‘calculation of individual advantage’ (Beyleveld, 1979, p. 205).

It assumes that individuals are rational beings who ‘engage in

conscious and deliberate cost–benefit analysis such that they

maximize the values and minimize the costs of their actions’

(Ward, Stafford and Gray, 2006, p. 572).

Rational choice theory suggests that crime results from a ‘rational

calculation of the costs and benefits of criminal activity’ and

individuals will ‘commit crimes … when the benefits outweigh

the costs’ (Spohn, 2007, p. 31). Therefore, according to the

theory, an individual will be deterred from committing a crime if

he or she perceives the costs to outweigh the benefits. In other

words, a person will be deterred from offending ‘if they perceive

that they are certain to be punished, with a severe penalty, and

soon after the offence has been committed’ (Spohn, 2007, p. 31;

citing Paternoster, 1991, p. 219).

Punishment avoidance and deterrence

Classical deterrence research has also been criticised for

overlooking what might be described as the ‘other side’ of the

cost–benefit equation, having ‘focused on punishments for crime

with little regard to the rewards for crime, or the rewards and

punishments for noncrime’ (Ward, Stafford and Gray, 2006,

pp. 573–574). In other words, deterrence theory has failed to consider

the gains and losses that people receive when they do not commit

a criminal act, and how those considerations affect deterrence.

An expansion of deterrence was proposed by Stafford and Warr

(1993), in order to address some of the limitations of classical

deterrence theory. Their approach was to include the direct and

indirect effects of both punishment and ‘punishment avoidance’

(Stafford and Warr, 1993, p. 125) – where an individual has

had the experience of committing a crime and then avoiding

punishment. The authors assert that specific deterrence needs

to be considered as the direct effect on the individual of both his

or her experience of punishment and his or her experience of

punishment avoidance. The experience of punishment avoidance

is assumed to reduce the effect of deterrence.

Similarly, it is proposed that general deterrence should be seen

as the effect of the indirect experience of punishment – through

knowledge of others being punished – and, again, indirect

punishment avoidance – where an offender has knowledge that

others have committed a crime but avoided punishment. The

effect of general deterrence is also assumed to be reduced by

the experience of indirect punishment avoidance.

This reformulation is significant, for it has been proposed that

‘punishment avoidance does more to encourage crime than

punishment does to discourage it’ (Stafford and Warr, 1993, p. 125).

Although the consideration of ‘punishment avoidance’ broadens

classical deterrence theory, it does not address the primary issue

of how decisions to offend are made in the first place.

Limitations of rational choice theory

Rational choice theory has been criticised because of its highly

‘normative’ stance, assuming that an individual makes a purely

rational, utilitarian calculation of costs and benefits, without being

influenced by individual, subjective perceptions. As a result, the

model does not adequately account for offenders who do not

exhibit that level of rationality.

For the purposes of this paper, different levels of irrationality can

be broadly separated into three groups.

First, at the most extreme are the examples of crimes

committed by people who are subsequently found to be not

criminally responsible due to mental impairment.25 By definition

those offenders do not satisfy rationality or rational choice

theory and so lack a necessary element for deterrence.

Second, many offenders may be considered ‘irrational’ under

the traditional model, though not so irrational as to be not

criminally responsible. This grouping might include offenders

who are drug-affected or intoxicated with alcohol, intellectually

disabled or suffering from a mental disorder. Also, it might

25 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20.

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Donald Ritchie 9

include those who have behavioural problems, such as poor

‘anger management’, or who lash out impulsively if provoked.

Although all of these offenders are properly considered criminally

responsible, their offending behaviour is not easily reconciled

with rational choice theory.

A 2003 report for Corrections Victoria on substance use

treatment found that two-thirds of all first-time offenders

entering the Victorian criminal justice system had ‘a history of

substance use that is directly related to their offending behaviour’

(FPRG, 2003, p. 3). The report (p. 3) further noted that:

For second and subsequent incarcerations, this figure increases

to 80% for men and 90% for women (Victorian Prison Drug

Strategy, 2002). Excessive alcohol use has also been implicated in

the offending cycle, with research suggesting that between 41%

and 70% of violent crimes committed in Victoria are done so

under the influence of alcohol (Office of the Correctional Services

Commissioner, 2000).

A more recent (2007) Victorian study found a high prevalence of

mental illness among people detained in police cells (Department

of Justice, 2010, p. 14; citing Corrections Victoria, 2007). Of that

group, 70% had some form of substance use or dependency, 53%

were registered in the Victorian public mental health database

and 25% reported a psychiatric history. Another Victorian

study of prisoner mental health found that 28% of prisoners

had diagnosed mental health conditions (Department of Justice,

2003, p. 26).

Often, these offenders have multiple conditions (described as

‘co-morbidities’). For example, substance use and mental illness

are strongly correlated (Mullen, 2001, p. 17). While the presence

of mental illness and substance use or dependency does not

by itself indicate an inability to make a rational choice, it does

suggest that the general assumption of rationality, required by

classical economic theory, is problematic for an overwhelming

majority of offenders.

Third, more subtle forms of irrationality – in the strict sense

of individuals not acting in their own best interests – can

be observed in much of human behaviour. This challenge

to rational choice theory has been the particular focus of

behavioural economics.

Behavioural economics theory

Behavioural economics explores the ways in which people

depart from the ‘rational actor’ model of classical economics

and instead seek satisfaction (which may be against their own

interests), rather than maximising utility as classical economics

presumes (Simon, 1955). Behavioural economics proposes

that decision-making is based upon imperfect knowledge and

often employs the use of experience-based techniques for

problem solving – such as using ‘rules of thumb’ and intuitive

judgments – known as ‘heuristics’, rather than strict logic.

Further, it is argued that our thinking is subject to patterns of

deviation in judgment that occur in particular situations described

as ‘cognitive biases’ (Tversky and Kahneman, 1974, p. 1124).

Numerous cognitive biases have been proposed; however, this

discussion will be limited to those biases that have a particular

bearing upon decision-making in the context of deterrence.

For example, despite offenders knowing that there may be

a severe penalty for committing a particular offence, they

may overestimate their own ability to complete the offence

successfully, without being apprehended, compared to

others. McAdams and Ulen (2009) argue that this reflects the

cognitive bias known as the ‘optimism’ or ‘overconfidence’ bias.

Along with other biases (such as the ‘present bias’ discussed

below) the optimism bias creates deviations from perfect

rationality and affects the decision to offend (McAdams

and Ulen, 2009).

The study of cognitive biases has also suggested an explanation

for why, in some cases, there is a significant relationship between

punishment and an increased likelihood of reoffending. The bias

known as the ‘gambler’s fallacy’ suggests that offenders may

reoffend soon after being caught and punished. This may be

due to a ‘resetting effect’, which causes an offender to lower his

or her estimation of being apprehended, believing (irrationally)

that being apprehended again is extremely unlikely (Piquero and

Pogarsky, 2002, pp. 180–181).

Bounded rationality and bounded willpower

In its classical form, rational choice theory does not take into

account the subjectivity inherent in decision-making.

However, modern versions of rational choice theory argue

that people intuit the values and costs of an action, but

because they are imperfect processors of information, they

pursue what they perceive as most satisfying (Ward, Stafford

and Gray, 2006, p. 572). This ‘subjective expected utility’ form

of rational choice theory still assumes that people perceive and

evaluate the costs and benefits of a particular course of action;

however, they are bound by the ‘limits of their abilities’ (Ward,

Stafford and Gray, 2006, p. 572) and so exhibit limited or

bounded rationality.

Despite the reliance of bounded rationality upon intuition, rather

than knowledge, it is argued (von Hirsch et al., 1999, p. 6) that

deterrence theory will still apply:

if [people] consider benefits and costs, to some degree, within

parameters influenced by their attitudes, beliefs and preferences;

and if they are affected by the information (however incomplete or

inaccurate) available to them.

10

Alongside bounded rationality, the theory of ‘bounded willpower’

refers to the fact that people often take actions that are in

conflict with their own long-term interests, despite being aware

of this conflict. At play are two forms of decision-making: on

the one hand, thinking that is deliberative and forward-looking,

concerned with some future goal and, on the other hand,

thinking that is impulsive and short-sighted and that seeks only to

satisfy an immediate need.

Robinson and Darley (2004, p. 179; citations omitted)

found that:

potential offenders as a group are people who are less inclined to

think at all about the consequences of their conduct or to guide

their conduct accordingly. They often are risk-seekers, rather than

risk-avoiders, and as a group are more impulsive than the average.

Further, conduct decisions commonly are altered by alcohol and

drug intake.

Present bias and discounting future penalties

As Jolls, Sunstein and Thaler (1998, p. 1538) note,

‘[a] central feature of much criminal behaviour is that

the benefits are immediate, while the costs (if they are

incurred at all) are spread out over time—often a very long

time’. Bounded willpower creates what is known as the

‘present bias’ – where greater value is placed on the immediate

circumstances (whether it be a cost or a reward) and the

future consequences are ‘discounted’. As a result, the degree

to which individuals devalue those delayed consequences is

described as their ‘discount rate’ (Jolls, Sunstein and Thaler, 1998,

pp. 1538–1539).

Research has shown that potential offenders may have

unusually high discount rates. In other words, the ‘cost’ of a

penalty of years in prison, imposed far in the future, will be

heavily discounted when compared to the immediate

benefit of committing a crime. One study found that, on a

scale of severity, offenders considered a five-year term of

imprisonment as only twice as bad as a one-year term

(Spelman, 1995, p. 120). These findings suggest that

offenders may demonstrate a diminishing sensitivity to

increasingly severe punishments, with serious implications for

deterrence theory.

Robinson and Darley (2004, p. 174) comprehensively summarise

the present challenges to deterrence theory from behavioural

science:

Potential offenders commonly do not know the legal rules …

Even if they know the rules, the cost-benefit analysis potential

offenders perceive … commonly leads to … violation rather than

compliance, either because the perceived likelihood of punishment

is so small, or because it is so distant as to be highly discounted …

And, even if they know the legal rules and perceive a cost-benefit

analysis that urges compliance, potential offenders commonly

cannot or will not bring such knowledge to bear [because of ] a

variety of social, situational or chemical influences. Even if no one of

these three hurdles is fatal to the law’s behavioural influence, their

cumulative effect typically is.

The challenges to rational choice theory posed by behavioural

economics suggest that models of decision-making – and

consequently, the theory of deterrence – must be broad enough

to include a range of characteristics that have been ignored in the

classical model, including such things as low self-control, shame,

moral beliefs and even the ‘pleasure of offending’ (Piquero and

Tibbetts, 1996, p. 482).

Decision-making theories

The examples above of bounded rationality, bounded

willpower and a number of the cognitive biases that affect

the commission of criminal acts, only touch upon the

complexity that surrounds decision-making theory. There

is significant controversy between philosophers (Dennett,

2003), behavioural economists (Kahneman and Tversky, 2000),

psychologists (Plous, 1993) and neuroscientists (Walton, Devlin

and Rushworth, 2004) regarding the processes of thinking

involved in decision-making.

As a result, for the purposes of this paper, the only definitive

conclusion necessary is that the rationality required for

deterrence theory to operate is not something that can be

assumed; nor is it likely to be satisfied for a significant number of

offenders and for particular kinds of offences.

Deterrence in practice

The question of whether deterrence actually works is

critical to any evaluation of the philosophical or moral

principles underlying its use. As Doob and Webster

(2003, p. 148) note, in 1987 the Canadian Sentencing

Commission evaluated the available evidence and expressed

its scepticism over the legitimacy of general deterrence, finding

that ‘the evidence did not support the deterrent impact of

harsher sentences’.

The Commission’s conclusion that harsher sentences did

not deter became ‘one of the justifications for its proposal

that sentences be proportionate to the harm done rather

than based on deterrence’ (Doob and Webster, 2003,

p. 148). The following section examines the most recent

empirical evidence on the effectiveness of imprisonment as a

general deterrent.

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Donald Ritchie 11

Measuring deterrence

If successful, deterrence should prevent the commission of

criminal offences. How then can we measure this ‘counterfactual’

figure? In other words, how do we measure the crime that does

not occur? McAdams and Ulen (2009) caution that those studies

that focus on prisoners are by definition focusing on individuals

whom deterrence has failed to influence, and as a result may

not be representative of those individuals for whom deterrence

works. Nevertheless, there has been much empirical research on

general and specific deterrence.

The various studies have adopted a number of approaches:

• ‘ecological’ or ‘association’ models, which compare crime

rates in different jurisdictions that have different penalties;

• interrupted time–series studies of jurisdictions where there

has been a change in penalty (or changes in the certainty of

apprehension from different enforcement methods); and

• experimental survey data of targeted offenders or

potential offenders, and less common experimental data

from both designed experiments (such as assigning an

offender to either probation or incarceration) and ‘natural’

experiments (such as the effect of mass releases resulting

from clemency decrees).

When examining the various studies it is important to recognise,

as Durlauf and Nagin (2010, p. 14) note, that:

because there is no settled theory on the causes of crime … choices

about control variables in the deterrence literature are necessarily

ad hoc to some degree and so the influence of such judgments

needs to be assessed.

Despite these constraints inherent in criminological research,

there are consistent themes that emerge from the research on

deterrence to be explored.

Summary

This section has defined deterrence as the avoidance of criminal

acts through fear of punishment. Deterrence exists in a number

of forms, including absolute, general and specific deterrence.

Deterrence theory is based on the economic theory of rational

choice, which suggests that individuals will weigh up the costs and

benefits of committing crime. Individuals will be deterred when

they have knowledge of – and consider – those costs, in the form

of certain, swift and severe legal punishments. Deterrence theory

has also been expanded to encompass the rewards of crime,

the benefits of non-crime and the experience of punishment

avoidance.

Rational choice theory fails to account for a large number of

‘irrational’ offenders, including those affected by drugs or alcohol

and those with mental illness or suffering a mental disorder.

Research shows that these offenders comprise a majority of

the prison population. Rational choice theory has also been

challenged by behavioural economics, which asserts that people

are not perfectly rational. Instead, individuals make decisions on

the basis of imperfect knowledge, employing rules of thumb,

and subject to bounded rationality, bounded willpower and

influenced by cognitive biases.

Finally, essential to an assessment of the use of deterrence as a

purpose of sentencing is an evaluation of whether or not there is

evidence that deterrence works in practice.

12

Introduction

This section examines the empirical studies and criminological

literature from the last 10 years on the effectiveness of

imprisonment as a general deterrent. The analysis shows that

imprisonment has a small positive deterrent effect.

The section then examines the evidence for the effects of two

forms of marginal general deterrence – changes to the severity

of punishment and changes to the certainty of punishment.

The research demonstrates that an increase in the severity

of punishment (particularly imprisonment) has no increased

deterrent effect upon offending. However, increases in the

certainty of apprehension consistently show a significant positive

deterrent effect.

This section also examines the emerging research which

suggests that studies that aggregate different populations –

combining ‘deterrable’ and ‘non-deterrable’ individuals – may

overstate the significance of the deterrent effect of the

certainty of apprehension and the certainty of punishment as a

deterrent factor.

Measuring general deterrence

Nagin, Cullen and Jonson (2009, p. 119; citations omitted) have

noted the difficulty in measuring general deterrence when

compared to its conceptual basis:

The theory of general deterrence is clear and particularly well

articulated in economic theory. It is the empirics that remain unclear.

What is the magnitude of the effect? How does it vary across

sanction types, crimes and people?

While there is substantial literature examining the effect

on general deterrence of changes to the severity and

certainty of punishments (particularly imprisonment),

generally speaking there have been two approaches to

measuring the effect of general deterrence: individual-level

perceptual studies and broad population-level aggregate

studies.

Perceptual studies

A number of perceptual, questionnaire-based studies

have been used to survey populations and measure their

anticipated responses to existing laws or experimental

scenarios. The studies usually involve self-reporting of past

behaviour and predictions of future behaviour and, as a result,

are susceptible to self-reporting bias and may not reflect the

participants’ true behaviours. However, these studies avoid

some of the problems associated with aggregate studies

(discussed below).

A recent Australian study by Watling et al. (2010) sought to

examine the general deterrent effect of new ‘drug-driving’ laws

introduced in Queensland in December 2007. The authors

surveyed 899 members of the public, including individuals who

had been referred to a drug treatment program, gauging the

subjects’ knowledge of, and experience with, the drug-driving

laws. The study also examined direct and indirect experience

of drug-driving behaviour and direct and indirect experience of

punishment and punishment avoidance.

The study found that experiences of punishment avoidance (both

direct and indirect) were related to increases in the likelihood

of drug-driving and were a significant predictor of the intent to

drug-drive. However, the indirect experience of punishment –

from knowledge of others being apprehended for drug-driving

– was not a significant deterrent.

The potential punishment included the loss of a driving licence

and the imposition of fines, rather than imprisonment; however,

these studies are of value in examining the deterrent effect from

the threat of a sanction in general. The study is consistent with

the theory developed by Stafford and Warr (1993), referred to

above, that the experience of avoiding punishment for an offence

does more to encourage crime than being punished does to

discourage it.

These results may seem contradictory: if knowledge of

indirect punishment avoidance is a predictor of behaviour,

then why wouldn’t knowledge of indirect punishment act in

the same way?

A possible answer may lie in the cognitive biases that can apply

to this situation. The present bias may favour knowledge of

punishment avoidance, and subsequent decision-making may

prefer the immediate reward (drug-driving without punishment)

over a potential, and seemingly doubtful, threat of apprehension

and subsequent punishment. Similarly, the optimism bias –

whereby offenders overestimate their ability to complete the

offence successfully without being apprehended, compared

to others – might explain why knowledge of other individuals’

punishment experiences did not deter.

An earlier study by Watson (2004) analysed the survey

responses of 290 people charged with unlicensed

driving or driving while disqualified, seeking to measure their

predicted deterrence from self-reported future offending.

The study used a number of classical deterrence variables,

including predicted risk of apprehension, knowledge of

punishments and the perceived severity, certainty and

swiftness of punishment. The results for those variables were

that none predicted the frequency of unlicensed driving. The

perceived risk of apprehension was the only variable that

approached significance.

General deterrence

Does Imprisonment Deter? April 2011 Sentencing Advisory Council

Donald Ritchie 13

The study also used a number of variables based on the

expanded deterrence theory of Stafford and Warr (1993),

including direct and vicarious exposure to punishment avoidance

(driving unlicensed without apprehension or knowing people

who had) and vicarious exposure to punishment (knowing family

or friends punished for unlicensed driving). The results showed

that punishment avoidance was the strongest predictor of the

frequency of unlicensed driving.

Although these studies were limited to driving offences (and

did not involve the threat of imprisonment), the results were

isolated to deterrence and did not combine deterrence and

incapacitation effects.

Meta-analyses and aggregate studies

A recent meta-analysis by Dölling et al. (2009) examined 700

studies on the general preventive effect of deterrence (not

specifically the effect of imprisonment as a general deterrent).

For this meta-analysis, each deterrence study was given an

‘estimation’ score based upon how strongly the hypothesis in

each study was supported by the results of each study. The

meta-analysis showed that over half of the studies (53%) found

a ‘general preventive effect of deterrence’ (Dölling et al., 2009,

pp. 202–204); however, the average deterrent effect was

negligible and had no statistical significance.

While a meta-analysis may provide a broad picture, the synthesis

of evidence through such analysis may ‘obscure important

subtleties related to large differences in quality across studies’

(Nagin, Cullen and Jonson, 2009, p. 143).

Another, more problematic approach (Piquero and Blumstein,

2007, p. 279) to measuring the general deterrent effect – but

one that focuses on imprisonment – involves:

measuring both the crime rates and incarceration rates in multiple

places, finding that places with higher incarceration rates have lower

crime rates, and using econometric analysis to assess the ‘elasticity’

of crime rates to changes in incarceration rates.

The elasticity refers to the amount by which the crime rate

changes in response to changes in the rate of imprisonment. The

results of measurement of general deterrence across multiple

jurisdictions and in the form of aggregate studies suggest that

there is a small general deterrent effect of imprisonment.

A recent review of six aggregate studies by Donohue (2009; cited

by Durlauf and Nagin, 2011, pp. 24–25) found that each study

showed a negative association between the imprisonment rate

and the crime rate – in other words, as the imprisonment rate

increased, the crime rate decreased. However, there has been

criticism of the methodology used in aggregate studies (Durlauf

and Nagin, 2011, pp. 24–26; Piquero and Blumstein, 2007, p. 268).

Piquero and Blumstein (2007, p. 279) have noted that there may

be a two-way relationship between crime and incarceration –

one in which ‘not only does incarceration influence crime, but

crime may also influence incarceration’. For example, higher

crime rates may saturate the prison system and so reduce the

use of imprisonment as a sentencing option when capacity has

been reached. As a result, a lower imprisonment rate does not

always correlate with a lower crime rate. To control for this

variable, ‘one needs to identify factors that contribute to crime,

but not incarceration and others that contribute to incarceration’

(Piquero and Blumstein, 2007, p. 279).

Further, Durlauf and Nagin (2010, p. 8) criticise the aggregate

studies for the fact that they were actually measuring a combination

of deterrent and incapacitation effects, and as a consequence:

it is impossible to decipher the degree to which crime prevention

is occurring because of a behavioral response by the population at

large or because of the physical isolation of crime-prone people.

Deterrence and incapacitation

While the aim of deterrence is to prevent future offending

through the threat of punishment, incapacitation seeks to

prevent an offender from committing crimes in the community

by means of physical incarceration (although further offending

may occur while in prison, for example, assaults on other

prisoners or theft).

The rationale for incapacitation is that it denies the offender

the opportunity to commit those crimes that would have been

committed had the offender been free in the community.

Incapacitation is a purpose of sentencing in Victoria, incorporated

in section 5(1) of the Sentencing Act 1991 (Vic). That section

provides that one of the purposes for which an offender may be

sentenced is ‘to protect the community from the offender’.

As discussed above, a number of aggregate studies of general

deterrence that compare imprisonment rates to crime rates do

not distinguish between incapacitation and deterrent effects.

In other words, any change in the crime rate as a result of

changes to the imprisonment rate may be a consequence of the

incapacitation of offenders (and their physical inability to offend

outside of prison), rather than a result of a general deterrent

effect acting upon other individuals living in the community.

To separate incapacitation effects from the effect of general

deterrence, complex methodologies (based on criminal surveys)

are used to estimate the number of offences that particular

offenders would have committed across their criminal ‘career’ –

focussing on estimates of the frequency of offending and the

estimated duration of that offending (Donohue and Siegelman,

1998, p. 9).

14

There has been very little research in Australia on incapacitation

as a purpose of sentencing and the effect of incapacitation upon

crime. A 2006 study of the incapacitation effect of prison on

burglary adopted the following methodology (Weatherburn, Hua

and Moffatt, 2006, p. 3; citations omitted):

Instead of looking at the correlation between the rate of offending

and the rate of imprisonment, [researchers] estimate its effect

using a mathematical model … This model assumes there is a finite

population of offenders who, when they are free in the community,

commit crimes at a certain rate and remain involved in crime over

a certain period (known as their criminal career) … the larger the

fraction of an offender’s criminal career spent in prison, the less

crime they are able to commit.

In that study, the authors found that imprisonment was an

effective method of crime control for the offence of burglary,

estimating that ‘the incapacitation effect of prison on burglary

(based upon the assumption that burglars commit an average

of 38 burglaries per year when free) [was] 26 per cent’

(Weatherburn, Hua and Moffat, 2006, p. 8). However, the

authors acknowledged that their results were based upon a

methodology that made significant assumptions – including

the primary assumption that there was a finite population of

offenders.

This assumption is questionable when the imprisonment of

certain offenders who provide a market with goods that are

high in demand – such as stolen goods in the case of burglars,

or drugs in the case of traffickers – is likely to result in other

individuals commencing offending in order to meet that

continuing demand. The effect of incapacitation policies are

therefore likely to vary depending upon the type of offences and

the types of offenders that are targeted.

Deterrence and increasing the severity

of punishment

In response to the small positive effect of imprisonment

as a general deterrent, lawmakers have often sought to

achieve an increased deterrent effect by strengthening the

threat – that is, by increasing the severity and certainty

of punishment.

If, as classical deterrence theory contends, the existence of the

criminal justice system (and the sanctions it imposes) acts as a

general deterrent to the commission of crime, then it would

seem reasonable that an increase in the severity of those

sanctions would correspondingly result in an increased deterrent

effect and thus a decrease in crime.

As discussed above, the presumption of deterrence from the

economic perspective of decision-making theory holds that

‘an increase in the probability and/or severity of punishment

(representing costs of criminal behaviour) will reduce the

potential criminal’s participation in illegitimate activities’

(Bodman and Maultby, 1997, p. 885) – in other words, the

greater the severity of punishment, the greater the potential

‘cost’ to be weighed up by the offender when contemplating the

commission of a crime.

Implicit in the ability to weigh up the cost of a crime is the

assumption that a potential offender has knowledge of the

actual punishment. If a punishment level has been increased

for the purposes of increasing deterrence, it follows that the

increase must also be known to the offender in order to have

any increased effect. In 2005, a study that tested the

relationship between actual punishment levels and an

individual’s perception of punishment (Kleck et al., 2005, p. 653)

found that:

[t]here is generally no significant association between perceptions

of punishment levels and actual levels … implying that increases in

punishment levels do not routinely reduce crime through general

deterrence mechanisms.

This study confirmed Doob and Webster’s 2003 review

of sentence severity and deterrence, which argued that

the empirical evidence simply did not sustain the hypothesis

that an increase in the severity of penalties generated a

marginal increase in deterrence (and therefore a reduction

in crime). Doob and Webster (2003) comprehensively

reviewed major studies of the deterrent effect of changes

to penalty severity from a period of 10 years and concluded

that they ‘could find no conclusive evidence that supports

the hypothesis that harsher sentences reduce crime through

the mechanism of general deterrence’ (Doob and Webster,

2003, p. 187).

Does Imprisonment Deter? April 2011 Sentencing Advisory Council

Donald Ritchie 15

A few years earlier, in their comprehensive paper ‘Criminal

Deterrence and Sentence Severity: An Analysis of Recent

Research’, von Hirsch et al. (1999) conducted a similar review of

the empirical studies and literature on the marginal deterrent

effect of changes to the severity of punishment and concluded

that the research ‘fails … to disclose significant and consistent

negative associations between severity levels (such as the

likelihood or duration of imprisonment) and crime rates’ (von

Hirsch et al., 1999, p. 47).

These findings have been confirmed in subsequent studies,

including one that examined the striking difference in the severity

of punishments as a result of the change in jurisdiction from

the juvenile court to an adult court. Lee and McCrary (2009)

examined crime histories for young offenders in Florida in order

to see if there was a marked decline in offending at the age of 18,

when prosecution of offending moves from the juvenile court to

the adult court. If identified, such a decline might be evidence of

the deterrent effect of the potential for more severe penalties in

the adult court.

Lee and McCrary (2009, p. 8) were able to use data on the

precise timing of arrests, in order to separate deterrence from

incapacitation effects, and found that there was a small decline,

but it did not achieve statistical significance, confirming the ‘null’

effect that increasing the severity of penalties has on general

deterrence (Doob and Webster, 2003). The study’s findings

contradicted those of Levitt (1998), who found a significant

deterrent effect for the same change from a juvenile to an adult

court. However, Levitt’s study used annualised data, and Lee

and McCrary (2009, p. 7) argue that, as a result, this may have

combined incapacitation and deterrence effects resulting in a

larger deterrence estimate.

Why don’t harsher penalties deter more crime?

As emphasised by Kleck et al. (2005, p. 653), the studies on

changes to sentence severity do not imply that punishment does

not generate any deterrent effect at all. Instead, the authors

demonstrate that the deterrent effect does not increase or

decrease according to the actual punishment level to any

substantial degree. The authors propose that this is because – as

their findings demonstrated – the perceptions of risk upon which

deterrence depends do not change according to the actual

punishment levels imposed (Kleck et al., 2005, p. 653).

Durlauf and Nagin (2011, p. 31) suggest that another reason

why an increase in the severity of penalties does not generate

an increased deterrent effect is that ‘most research on sentence

length involves increases in already long sentences’. For example,

if the threat of a fifteen-year imprisonment penalty does not

deter a potential offender, it is questionable how much more

a twenty-year imprisonment penalty will generate a deterrent

effect. This is particularly relevant in light of the ‘present bias’ and

the resulting ‘discounting’ of future penalties, discussed above. If

potential offenders irrationally regard a penalty that is five times

as severe as being only twice as severe (Spelman, 1995, p. 120),

then it is likely that similar discounting would occur (and have

even less of a deterrent effect) when a penalty is increased by

one third.

This suggests that, for changes in sentence severity to have a

noticeable effect upon deterrence, those changes would have to

be extremely severe to counteract the discounting caused by the

present bias. For example, a 15%–20% specific deterrent effect

described by Helland and Tabarrok (2007, p. 326) (discussed

further below) was associated with an increase in the expected

sentence of at least 300% (Lee and McCrary, 2009, p. 6). It

has been argued that the resources required to impose such

sanctions would have a greater effect in reducing crime if spent

on policing, parole and probation monitoring systems (Durlauf

and Nagin, 2011, p 38).

Critical to deterrence theory is the potential offender’s

perception of the penalty that he or she will face, including

knowledge of the penalty and, if a change in penalty severity

is to influence the crime rate, knowledge of that change.

Darley (2005) returns to the fundamental question of whether

considerations of future punishment are in fact represented in

most offenders’ decisions to commit a crime.

If, as Darley (2005, pp. 195–198) suggests, crimes are committed

by ‘persons with somewhat disordered personalities who are

characterized by a predilection for impulsive behaviour’, or while

under the influence of drugs and/or alcohol, or in the company of

social peers who form a crime-prone group (or indeed, all three),

then the considerations required for deterrence – let alone

marginal deterrence from changes to the severity of penalties –

are unlikely to be satisfied.

Those people who are characterised by their impulsive

behaviour, drugs and alcohol use or criminal peers, make up

a significant proportion of offenders. For example, a recent

statistical profile by the Sentencing Advisory Council on

sentencing for armed robbery for the period 2006–07 to

2007–08 found that, of the 517 charges for which motivation was

known, the overwhelming majority (84.3%) were related to drug

or alcohol use (Woodhouse, 2010, p. 14).

Even if none of these factors influencing offending behaviour is

present, however, a ‘rule known by a rational [individual] and

perceived to carry a meaningful penalty nonetheless will not

deter if the chance of getting caught is seen as trivial’ (Robinson

and Darley, 2004, p. 205). The certainty of apprehension and

punishment is therefore critical to any general deterrent effect.

16

Deterrence and increasing the certainty

of punishment

That the deterrent effect of the certainty of punishment

far outweighs the deterrent effect of the severity of

punishment has been described as ‘one of the most prominent

empirical regularities in criminology’ (Pogarsky 2002, p. 435;

citations omitted).

Numerous studies have confirmed this effect. Durlauf and

Nagin’s (2010) review of aggregate studies of police presence

‘consistently [found] that putting more police officers on the

street … is associated with reductions in crime’ (Durlauf and

Nagin, 2010, p. 25). However, it is not merely the presence of

police, but the necessary consideration in the potential offender’s

mind that apprehension is a genuine threat, that will generate a

deterrent effect.

A 2005 Australian study by Tay demonstrated that an increase

in the number of random breath tests conducted (even though

the apprehension rate was low) would result in a significant

decrease in the number of serious road crashes caused by

alcohol (Tay, 2005, pp. 220–221). In other words, the threat of

certainty of apprehension would operate as a general deterrent

against drink-driving (evidenced by the reduction of crashes),

rather than as a specific deterrent through the apprehension of

more offenders.

Another Australian study by Briscoe (2004) found that, despite

an increase in the severity of drink-driving penalties in New

South Wales in 1998, there was a statistically significant increase

in vehicle accident rates after the introduction of the penalties.

When exploring why this seemingly paradoxical result occurred,

Briscoe noted that there was a reduction in the ‘intensity of

drink-driving enforcement around the [same] time that the

drink-driving penalties were raised’ (Briscoe, 2004, p. 925),

suggesting that the level of perceived certainty of apprehension

declined just as the new penalties were introduced. The

reduction in perception of the certainty of apprehension seems

to have trumped the increase in the severity of penalties.

Nagin and Pogarsky’s experimental study of cheating, the

self-serving bias and impulsivity (2003, pp. 182–185) explored

the effects of variation in the threatened certainty and severity of

punishment and found that, consistent with earlier research, the

deterrent effect of certainty of punishment was larger than that

of the severity of punishment.

That the certainty of apprehension deters to a greater extent

than the severity of punishment confirms the cognitive bias

known as the ‘availability heuristic’. This cognitive bias proposes

that people will judge the likelihood of uncertain events

(such as being apprehended for a crime) by how readily

examples of the event can be called to mind and that this

may depend on factors that are unrelated to the actual

probability of the event (Jolls, Sunstein and Thaler, 1998,

p. 1477). For example, rare but highly publicised events – such

as a terrorist attack – are often incorrectly judged as being more

likely to occur than under-reported but very common events –

such as a car accident.

Recent incidents of police enforcement (or a visible police

presence) are more likely to be called to mind by a potential

offender than the particulars of a (real or imagined) example

of the imposition of a severe sentence for the crime being

contemplated. As a result, Darley (2005, p. 204) notes that:

in contrast to attempts to reduce crime rates by increasing the

severity of the sentence for the crime, campaigns that make salient

in the mind of the public the possibility of being caught … are often

successful.

Deterring the deterrable

While the deterrent effect of the certainty of apprehension has

been confirmed by numerous studies, Pogarsky (2002) has

challenged the basis on which this strong effect has been observed.

Pogarsky proposes that potential offenders should be assigned

to three different populations (Pogarsky, 2002, pp. 432–433):

acute conformists, who comply with the law for reasons other

than the threat of sanction, the incorrigible, who cannot be

dissuaded, regardless of the sanction, and the deterrable, who

occupy the middle ground and who ‘are neither strongly

committed to crime nor unwaveringly conformist’ (Pogarsky,

2002, pp. 432–433; citing Nagin and Paternoster, 1993, p. 471).

Deterrence theory necessitates that only those deterrable

individuals will be affected by changes in either the severity

of threatened sanctions or the certainty of apprehension.

Jacobs (2010, p. 417) emphasises this critical requirement of

‘deterrability’:

If deterrence describes the perceptual process by which would-be

offenders calculate risks and rewards prior to offending, then

deterrability refers to the offender’s capacity and/or willingness to

perform this calculation.

Studies comparing the deterrent effect of severity to the

deterrent effect of certainty of apprehension have ‘aggregated

deterrable and undeterrable individuals alike, even though

the latter heed neither aspect of sanction threats’ (Pogarsky,

2002, p. 435; emphasis in original). Instead, ‘the most probative

evidence would come from studies that directly compared any

deterrent effect among groups differing in criminal propensity’

(Wright et al., 2004, p. 186). Currently, there is a lack of such

targeted research.

Does Imprisonment Deter? April 2011 Sentencing Advisory Council

Donald Ritchie 17

The willingness (and, arguably, the ability) to engage in the

‘calculation’ Jacobs (2010) describes – and on which deterrence

depends – will vary widely according to the type of offender and

the kind of offence. For example, at one end of the spectrum

of ‘consideration’ prior to offending may lie commercial drug

trafficking by a non-addict, run as an illegitimate business,

involving the offender making ongoing calculations of the costs

and benefits of crime. At the other end of the spectrum may

lie a violent assault by an intoxicated young offender, reacting

impulsively to a perceived threat or provocation.

Even within the limitations of bounded rationality and bounded

willpower, it is difficult to imagine the offender in the latter

example engaging in even negligible consideration of the

consequences of his or her criminal behaviour, let alone weighing

up the threat of a future penalty. Research (Giancola and

Corman, 2007, p. 649) has shown that alcohol intoxication:

disrupts cognitive functioning … creating a ‘myopic’ or

narrowing effect on attentional capacity. Consequently, alcohol

presumably facilitates aggression by focusing attention on more

salient provocative, rather than less salient inhibitory, cues in a

hostile situation.

In other words, alcohol may exaggerate and distort the present

bias to the point that the consequences of criminal behaviour

(both immediate and future consequences – including the

discounted cost of a future penalty) simply do not enter into

the offender’s decision-making process. In those circumstances,

it is very unlikely that the offender will be deterred, even if he

or she has knowledge of there being a severe penalty for the

particular offence, or knowledge that he or she is certain to be

apprehended and punished, or indeed both.

Although the estimates vary considerably, Australian research

suggests that alcohol is involved in 23% to as much as 73% of all

assaults (Morgan and McAtamney, 2009, p. 2; citations omitted)

and around 44% of all homicides (Morgan and McAtamney, 2009,

pp. 2–3; citations omitted). In light of those estimates and estimates

of the prevalence of mental illness among prisoners (discussed

above), there are significant limitations on general deterrence

and the number of offences and, in particular, the type of

offenders, that the threat of punishment can possibly deter.

Summary

This section has examined evidence of the strength of

imprisonment as a general deterrent. The research suggests

that imprisonment has a negative but generally insignificant

effect upon the crime rate, representing a small positive

deterrent effect.

Deterrence studies have most often examined two forms

of marginal general deterrence – changes to the severity of

punishments and changes to the certainty of apprehension.

The research demonstrates that increases in the severity of

punishment (most commonly by lengthening sentences of

imprisonment) have no corresponding increased deterrent effect

upon offending.

It has been proposed that harsher punishments do not deter

for a number of reasons, including a lack of impact of actual

punishment levels on perceptions of punishment and the ‘present

bias’ of most offenders, who discount the severity of distant

punishments in favour of meeting immediate needs. Where

changes in severity have demonstrated a deterrent effect,

the lengthy terms of imprisonment required may represent a

disproportionate response to the criminal behaviour. It has also

been suggested that the allocation of resources needed for

lengthy terms of imprisonment could reduce more crime (than

that generated by a general deterrent effect) if reallocated to

enforcement, parole or community-based sentences.

Increases in the certainty of apprehension consistently show a

significant positive general deterrent effect. However, emerging

research has qualified the strength of those findings, suggesting

that studies should separate (and then compare) ‘deterrable’ and

‘non-deterrable’ populations. Research also suggests that the

prevalence of ‘non-deterrable’ offending – for example, offending

in the context of alcohol intoxication – may significantly impact

the effectiveness of general deterrence.

18

Introduction

This section examines the empirical studies and criminological

literature from the last 10 years on the effectiveness of

imprisonment as a specific deterrent. It briefly outlines the theory

of specific deterrence and its basis in the subjective experience

of imprisonment. An examination of the evidence of the effects

of imprisonment on reoffending follows. This examination

suggests that imprisonment has no effect on deterrence, and in

a number of studies imprisonment is shown to be criminogenic –

in other words, it causes or is likely to cause criminal behaviour.

The section also includes a discussion of specific deterrence and

young offenders and presents the similar conclusions that the

empirical research in that area provides.

The scope of specific deterrence

As discussed above, general deterrence holds that the imposition

of sanctions by the criminal justice system will act as a threat to

all potential offenders. Specific deterrence holds that an individual

offender’s experience of an actual criminal sanction – particularly

imprisonment – will deter that individual from reoffending.

Specific deterrence is therefore less likely to be a relevant

purpose of sentencing when the risk of reoffending is very

low. This is particularly so for those offenders whose offending

behaviour was the result of circumstances that are highly unlikely

to be repeated – such as a momentary lapse in attention while

driving that results in an offence of culpable driving. While the

sentence imposed against such an offender may potentially

operate as a general deterrent (although, as discussed, this may

be unlikely), specific deterrence of the individual concerned may

be redundant.

Critics have argued that, compared to general deterrence, the

logic behind specific deterrence is ‘murky’ (Nagin, Cullen and

Jonson, 2009, p. 119) and that confusion has been generated

by the described overlap between ‘the impact of punishment

on potential offenders’ and ‘the impact of punishment on

the offender’ when these processes are separate and distinct

(Nagin, Cullen and Jonson, 2009, p. 119; citations omitted). The

critical focus of specific deterrence – at least from an economic

perspective – is whether punishment influences an offender’s

perceptions of the costs of future offending.

The experience of imprisonment

The experience of imprisonment in influencing the perceptions

of the costs of future offending is highly subjective, and ‘[t]he

precise effects on perceptions or expectations of being in prison

… are not straightforward and likely to hinge on a number of

contingencies’ (Nagin, Cullen and Jonson, 2009, p. 124).

It is conceivable that the subjective experience of imprisonment

may vary considerably between offenders, particularly in

minimum-security prisons, where the regular (and mandated)

provision of food, shelter and some limited autonomy may

constitute a better day-to-day experience for some inmates

than the life they experienced outside. For those offenders, the

experience of imprisonment may not act as a specific deterrent

to reoffending. It is unlikely, however, that the experience of an

offender in a supermaximum-security (or ‘supermax’) prison,

involving frequent isolation and severe physical controls, is

subjectively preferable to an offender’s experience of life outside

of prison.

In those circumstances, specific deterrence theory would suggest

that, all things being equal, an offender released from a supermax

prison would be specifically deterred from reoffending to a

greater degree than a similar prisoner who had experienced a

non-supermax prison. However, a recent study of supermax

inmates in the United States did not find evidence of a specific

deterrent effect (Mears and Bales, 2009). After controlling for a

wide range of variables, including demographic characteristics,

disciplinary infractions, time served, offence seriousness and

prior criminal record, the authors found that supermax inmates

were equally as likely to reoffend as non-supermax inmates.

Additionally, it was found that supermax offenders were more

likely to reoffend for violent crimes than non-supermax inmates.

This finding confirmed the results of a study that compared

prisoners on either side of the cut-off between different security

levels – and the assignment of prisoners to those prisons with

corresponding conditions – and found ‘no evidence that harsher

confinement conditions reduced recidivism’ (Chen and Shapiro,

2007, p. 3).

It appears that harsher prison conditions do not necessarily

discourage future offending and that, paradoxically, the

experience of imprisonment may exert a criminogenic effect – in

other words, a crime-producing effect – by providing a criminal

learning environment, by labelling and stigmatising offenders

as criminals or by simply constituting an ineffective way of

addressing the underlying causes of crime, as discussed further

below (Nagin, Cullen and Jonson, 2009, pp. 127–128).

Specific deterrence

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Donald Ritchie 19

Imprisonment and reoffending

The failure of imprisonment to act as a deterrent for a significant

number of offenders is evident in both the post-imprisonment

recidivism rate, and the number of prisoners in custody who

have served a prior term of imprisonment.

A 2007 study on recidivism in Victoria showed that, of the

prisoners released from a sentence of imprisonment in 2002–03,

over 34.7% were convicted of further offences and returned to

prison within two years of release (Holland, Pointon and Ross,

2007, p. 13). The proportion of offenders returning to prison was

highest for young offenders, with 55.7% of offenders aged 17–20

years returning to prison within two years (Holland, Pointon and

Ross, 2007, p. 15).

In Victoria, almost half (49%) of all adult prisoners in custody

at 30 June 2010 had a known prior sentence of adult

imprisonment (Australian Bureau of Statistics, 2010b, p. 34).

At a national level, over half (54.6%) of all adult prisoners in

custody on that date had also served a sentence in an adult

prison prior to the current episode (Australian Bureau of

Statistics, 2010b, p. 37).

A number of literature reviews examining the effects of

imprisonment on reoffending have been conducted over the

last 10 years. One of the most recent, by Nagin, Cullen and

Jonson (2009), found that imprisonment had either no effect or

a mildly criminogenic effect upon reoffending when compared

to non-custodial or community-based sanctions. The authors

concluded that their analysis of the evidence of the deterrent

effects of imprisonment ‘casts doubt on claims that imprisonment

has strong specific deterrent effects’ (Nagin, Cullen and Jonson,

2009, p. 115).

The results confirm the review from a decade earlier by

Gendreau, Goggin and Cullen (1999), who examined 50 studies

dating from 1958, using quantitative methods to determine

whether prison reduced criminal behaviour or recidivism. The

result of this meta-analysis demonstrated that imprisonment

generated slight increases in recidivism. The study also showed

that lower risk offenders in particular could be negatively affected

by being in prison. The authors concluded that imprisonment

could not be expected to reduce criminal behaviour through a

specific deterrent effect. Instead, they argued that prison should

be used to punish and incapacitate chronic, higher risk offenders

(Gendreau, Goggin and Cullen, 1999).

Although the results of specific deterrence studies tend to

demonstrate that imprisonment has no deterrent effect or a

slightly criminogenic effect upon offenders, it is useful to separate

the studies into their different methodologies for the purpose of

analysis and comparison.

Experiments and ‘natural experiments’

The ‘gold standard’ for measuring the effect of imprisonment

upon specific deterrence would be to conduct an experiment

and randomly assign half the similar offenders to imprisonment

and half to a non-custodial sentencing order. While such a

proposal would seem ethically questionable, one such example

of this experimental design has occurred, as described by Killias,

Aebi and Ribeaud (2000). In that study, eligible offenders were

randomly assigned to either 14 days’ imprisonment or a 14 day

community-based order. In the two-year follow-up period

both groups (and a further comparison group of community

corrections offenders) were measured on the frequency of the

offenders’ reoffending or their subsequent contact with police.

No difference was found between the three groups in relation

to subsequent police contact, and so imprisonment showed no

specific deterrent effect.

A more recent study by Green and Winik (2010, p. 359) took

advantage of a ‘natural experiment’ in the form of the random

assignment of offenders to a panel of nine judges. The judges

varied widely in terms of their punitive approaches and their

tendency to sentence offenders to either imprisonment or

probation. After accounting for incapacitation effects, the study

found that imprisonment seemed to have little net effect on

the likelihood of reoffending, and so demonstrated no specific

deterrent effect, confirming the results of Tait (2001).

Another two recent studies have taken advantage of large-scale

natural experiments, where there has been an external variation

in prison sentences at the individual level. The experiments

allowed researchers to identify the specific deterrent effects of

imprisonment, separate from their incapacitation effects.

The first, a 2009 study by Maurin and Ouss (2009), examined

the consequences of a French collective pardon granted to

inmates on Bastille Day in July 1996. Individuals in prison before

14 July 1996 received a reduction in their sentence of one

week, along with an additional week for every month remaining

on their sentence at 14 July 1996 (up to a maximum of four

months). Five years after release, the rate of recidivism for

inmates released after Bastille Day – who had received a reduced

sentence – was about 12% greater than the rate of recidivism

for those released before Bastille Day – who had received no

reduction in sentence.

The second, a 2009 study by Drago, Galbiati and Vertova

(2009), examined 22,000 prisoners whose sentences were

‘commuted’ under the Collective Clemency Bill passed by the

Italian Parliament in July 2006. That legislation reduced the

sentences for all offenders who had committed a crime before

2 May 2006 by three years. Those prisoners with less than three

years to serve on their sentence – approximately 40% of the

20

prison population at the time – were immediately released. The

law provided, however, that if the former prisoners reoffended

within a five-year period, in addition to any new sentence, they

would have to serve the amount of their sentence that had been,

in effect, suspended.

The authors found that for every one month that was

suspended – in other words, for every one month that the

former prisoner would have to serve if convicted for reoffending

within the following five years – there was a 1.3% reduction in

the probability of reoffending. Unlike the French study (Maurin

and Ouss, 2009), in which the prisoners received a reduction

in sentence without the condition of suspension, the Italian

study (Drago, Galbiati and Vertova 2009) examined a release

of prisoners where the threat of an increased sanction for

reoffending continued after their release. The immediacy of this

threat may have countered the future discounting effect of the

present bias. Also, it was found that the longer the time that

was served, the less deterrent effect, which ‘points to an overall

criminogenic effect’ (Nagin, Cullen and Jonson, 2009, p.167) of

imprisonment.

Matching studies

Matching studies involve comparing the reoffending rates of

offenders sentenced to imprisonment with a similar population

sentenced to a punishment other than imprisonment, controlling,

as much as possible, for all other factors.

In an Australian study released in 2010 on the effect of prison

on adult reoffending, Weatherburn (2010) examined the specific

deterrent effect of imprisonment for offenders convicted of

either burglary or non-aggravated assault. The study matched

pairs of offenders convicted of each offence using a number

of variables – including offenders having the same priors, the

same number of appearances, the same number of concurrent

offences and the same bail status – with the critical difference

being that one member of the pair received a full-time prison

sentence while the other did not.

The author then measured the length of time until reoffending

for the matched pairs and found that, for the offence of burglary,

prison exerted no significant effect on the risk of recidivism. For

non-aggravated assault, however, imprisonment appeared to

increase the risk of further offending, at least for that particular

offence. The author concluded that – while the results may not

generalise to other types of offenders – as a result of these

findings, ‘it would be unwise to imprison offenders when the only

reason for doing so is a belief in the specific deterrent effect of

prison’ (Weatherburn, 2010, p. 10).

This finding confirms the result of a 2002 study that evaluated

the deterrent effect of imprisonment by comparing recidivism

rates for a sample of offenders sentenced to prison with a

matched sample of offenders placed on probation (Spohn

and Holleran, 2002). The offenders were matched on the

basis of their background characteristics, prior criminal record

and predicted probability of incarceration, in order to isolate

imprisonment as the one differing variable. That study (Spohn

and Holleran, 2002, p. 350) found:

Contrary to deterrence theory, offenders who were incarcerated

were significantly more likely than those who were put on probation

to be arrested and charged with a new offense.

The findings of the French experiment (Maurin and Ouss,

2009) that simple release has no specific deterrent effect, and

the findings of the Italian experiment (Drago et al., 2009) that

release on a suspended sentence demonstrated a specific

deterrent effect, are in accordance with the findings of Lulham,

Weatherburn and Bartels (2009), which examined the issue of

breach of suspended sentences. That study matched the rates

of reoffending for offenders on a suspended sentence to the

rates of reoffending for those released from imprisonment.

The authors found that ‘there was a significant tendency for

the prison group to re-offend more quickly on release than the

suspended sentence group’ (Lulham, Weatherburn and Bartels,

2009, p. 10).

Another example of where the threat of an increased

sanction – specific to an individual offender – has had a

measurable deterrent effect is the study by Helland and

Tabarrok (2007) of the Californian ‘three-strikes’ laws. Those

laws provided that for a third strike-eligible offence a mandatory

penalty of 25 years to life (with a minimum to serve of 20 years

before parole) would be imposed.

This study compared the future offending of individuals convicted

of two strike-eligible offences with offenders convicted of one

strike-eligible offence who were then charged with a second

strike-eligible offence but were ultimately convicted of a

non-strike-eligible offence. In other words, the study compared

offenders with two strikes to those with just one, but whose

initial conditions (both groups having originally been charged

with a second strike-eligible offence) were similar. Using these

two groups provided data that were easily matched, with few

differences in observable characteristics.

The authors found that arrest rates were 15%–20% lower for

the group of offenders convicted of two strike-eligible offences,

compared to those convicted of one strike-eligible offence

(Helland and Tabarrok, 2007, p. 326). However, the authors then

went on to calculate the imprisonment costs for California of the

‘three-strikes legislation’ required to obtain this level of reduced

recidivism, and reached the staggering figure of US$4.6 billion

(Helland and Tabarrok, 2007, p. 328).

Does Imprisonment Deter? April 2011 Sentencing Advisory Council

Donald Ritchie 21

Why doesn’t the experience of prison deter reoffending?

There are a number of reasons why the experience of prison

may result in a greater rate of reoffending, rather than having a

deterrent effect upon offenders. Nagin, Cullen and Jonson (2009,

p. 126) identify three main reasons:

• First, prisons can act as a criminal learning environment in

which prison sub-cultures – acting in opposition to the

‘pro-social’ or rehabilitative environment intended by the

state – encourage and reinforce criminal behaviour. Prisons

are ‘marked by the presence of cultural values supportive

of crime that can be transmitted through daily interactions’

and, as a result, ‘criminal orientations are potentially

reinforced’ (p. 126).

• Second, prisons may exert a labelling effect. This results

from both publicly stigmatising a person as a ‘criminal’,

which reinforces a criminal identity, and the subsequent

reaction from society to that criminal identity. The

consequences include denying future opportunities (such

as employment), enforcing prolonged association with

offenders and eroding social ‘ties to family and to the

conventional social order’ (p. 126). The severing of social

ties reduces the offender’s ‘stakes in conformity’ resulting

in a reduced incentive for law-abiding behaviour (Spohn,

2007, p. 31).

• Third, prison may simply be an inappropriate response

to the criminality of most offenders, failing to treat the

underlying causes of criminal behaviour. Research to

identify what form of treatments might address the factors

predicting recidivism suggests that ‘deterrence-oriented

interventions’ and ‘mere incarceration absent a treatment

component’ are inappropriate interventions because they

fail to achieve ‘meaningful reductions in recidivism’ (Nagin,

Cullen and Jonson, 2009, pp. 127–128). Prison may be

appropriate for high-risk offenders (p. 128), but:

[t]he danger is that inappropriate treatments—including

imprisonment—can have a criminogenic effect on low-risk

offenders, transforming those with low chances of

[reoffending] into those destined to offend again.

Additionally, Jacobs (2010) identifies a number of responses by

offenders to punishment (including imprisonment) that may

result in recidivism. Offenders may commit additional crimes

as a way to ‘lash out’ at what might be perceived as ‘capricious,

unjust, or unfair’ sanctions (Jacobs, 2010, p. 419; citations

omitted); offenders may be subject to the ‘resetting’ effect of the

gambler’s fallacy (discussed above), thinking that ‘lightning won’t

strike twice’ (Jacobs, 2010, p. 419; citations omitted); offenders

may think they have learned from their experience of crime and

lower their perceived certainty of detection when subsequently

offending (emboldened by the optimism bias, discussed above);

and finally offenders who have been imprisoned are, by that

fact, subject to a selection bias and may be ‘simply the most

committed offenders who … report a greater likelihood of

future offending’ (Jacobs, 2010, p. 419; citations omitted).

A recent Victorian study of recidivism (Holland, Pointon and

Ross, 2007) found that particular groups of prisoners were at

greater risk of reoffending within two years of release, including

younger offenders and Indigenous offenders. These findings

were also confirmed by Smith and Jones (2008) and Zhang and

Webster (2010). The higher rate of recidivism among younger

offenders suggests that, particularly for vulnerable groups,

imprisonment does not create a specific deterrent effect.

Specific deterrence and young offenders

In Victoria, the sentencing of young offenders in the Children’s

Court does not include the purpose of general deterrence.

However, the purpose of specific deterrence may be justified

by the ‘suitability’ and ‘accountability’ principles in sections

362(1)(e)–(f) of the Children, Youth and Families Act 2005 (Vic)

(Power, 2011, [11.1.4]).

A recent New South Wales study of 206 juvenile offenders

measured the extent to which offenders perceived the court

hearing in which they were sentenced to be a deterrent, and

whether they felt either stigmatised or reintegrated by the

process (McGrath, 2009). These interview data were then

compared to the offenders’ subsequent reoffending. The study

tested two hypotheses: first, that individuals who rated their risk

of arrest in the event of future offending as being higher would

be less likely to reoffend (measuring estimates of certainty as a

deterrent) and second, that those individuals who received what

they considered to be a more severe sentence would be less

likely to reoffend (measuring severity as a deterrent).

The results of the study confirmed the first hypothesis, because

perceived certainty of apprehension acted as a deterrent.

However, the results failed to support the second hypothesis,

and the imposition of a penalty perceived to be severe by the

offender did not act as a deterrent. This is in accordance with

previous research (Doob and Webster, 2003; Nagin, 1998; von

Hirsch et al., 1999). McGrath (2009, pp. 37–38) noted that:

The failure to observe a relationship between any of these measures

of severity and recidivism comprises strong evidence against the

proposition that harsh punishments are an effective deterrent to

future criminal activity.

Another study by Weatherburn, Vignaendra and McGrath

(2009) found that juveniles given custodial orders were no less

likely to reoffend than juveniles given non-custodial orders.

The study found no statistically significant criminogenic effect;

22

however, it confirmed the finding that prison exerts no specific

deterrent effect, consistent with evidence from previous studies.

The authors concluded that custodial penalties ‘ought to be

used very sparingly with juvenile offenders’ given ‘the absence

of strong evidence that [custodial penalties] act as a specific

deterrent’ (Weatherburn, Vignaendra and McGrath, 2009, p. 6).

The recent Australian findings may be explained in part

by Canadian researchers Cesaroni and Bala (2008, p. 450;

citations omitted), who note the potential risks associated with

imprisonment of young offenders:

Those youths who have pro-social values at the time of incarceration

may be placed with others who have anti-social attitudes; after

their release, youths may be more likely to associate with other

adolescents whom they have met in custody, and may therefore

be more likely to join gangs. Being in custody also appears to have

a negative effect on their long-term job stability, and hence may

contribute to reoffending.

A study by Ashkar and Kenny (2008) showed that where

imprisonment did seem to generate a specific deterrent effect

in juveniles, it was as a result of ‘bullying and victimisation,

dislocation from important others and fearful perceptions of

adult corrections’ (Ashkar and Kenny, 2008, p. 594). These effects

exist independently of the intent of the state to rehabilitate the

juvenile offenders and have significant human rights implications.

Instead of rehabilitation, the authors found that ‘the incarceration

experience failed to provide … the necessary skills to promote

and sustain positive change’ and the author concluded that

‘incarceration alone is unlikely to have any significant impact on

recidivism’ (Ashkar and Kenny, 2008, p. 595).

Summary

This section has examined literature reviews and recent empirical

studies on the effectiveness of imprisonment as a specific

deterrent. The available research suggests that imprisonment

has either no effect upon reoffending or a criminogenic

effect. There are a number of reasons for the failure of the

experience of imprisonment to deter offenders from reoffending,

including that imprisonment may create a criminal learning

environment, imprisonment may label and stigmatise offenders

and imprisonment may be an inappropriate way to address the

underlying causes of crime.

Humane conditions within prison itself do not appear to

contribute to the lack of a deterrent effect, as harsh prison

conditions have been shown to generate a similar lack of

deterrent effect and, for some crimes, a greater rate of

recidivism. As with adult offenders, young offenders do not

appear to be deterred by imprisonment, and some studies

show a criminogenic effect. Given the aims of rehabilitation and

reintegration, the lack of evidence for a specific deterrent effect

suggests that custodial penalties for young offenders should be

used sparingly and for purposes other than specific deterrence.

Does Imprisonment Deter? April 2011 Sentencing Advisory Council

Donald Ritchie 23

The evidence from empirical studies suggests that the threat

of imprisonment generates a small general deterrent effect.

However, the research also indicates that increases in the severity

of penalties, such as increasing the length of imprisonment, do

not produce a corresponding increase in the general deterrent

effect.

A consistent finding in deterrence research is that increases in

the certainty of apprehension and punishment demonstrate a

significant increase in the deterrent effect. This result is qualified

by the need for further research that separates deterrable

from non-deterrable populations. It has been suggested that

the significance of certainty of apprehension exhibiting a

deterrent effect may be overstated in studies that combine these

populations.

The research shows that imprisonment has, at best, no effect

on the rate of reoffending and is often criminogenic, resulting in

a greater rate of recidivism by imprisoned offenders compared

with offenders who received a different sentencing outcome.

Possible explanations for this include: prison is a learning

environment for crime, prison reinforces criminal identity and

may diminish or sever social ties that encourage lawful behaviour

and imprisonment is not an appropriate response to the needs

of many offenders who require treatment for the underlying

causes of their criminality (such as drug, alcohol and mental

health issues). Harsh prison conditions do not generate a greater

deterrent effect, and the evidence shows that such conditions

may be criminogenic.

In Victoria, deterrence represents only one of the purposes

for the imposition of a sentence to be considered by a

court alongside punishment, rehabilitation, denunciation and

community protection. The purposes of punishment and

denunciation are essentially ends in themselves, referable

directly to the offender and the criminal behaviour, without

need of justification by reference to the potential crime-reducing

consequences of punishment and denunciation. However, the

other purposes of sentencing – deterrence, rehabilitation and

community protection – do not merely respond to the criminal

behaviour, but also aim to achieve a reduction in crime.

Imprisonment has its place in the criminal justice system. Lengthy

terms of imprisonment may be justified to achieve the purposes

of punishment and denunciation, to protect the community

by the incapacitation of an offender or to provide time for

rehabilitative treatment.

In light of the empirical evidence, however, it is critical that the

purposes of sentencing be considered independently – according

to their own merits – and that caution be exercised when

imprisonment is justified as a means of deterring all crimes and all

kinds of offenders.

24

Absolute deterrence

The manner in which crime is reduced or prevented by the

existence of the criminal justice system as a whole, rather than

through the threat or imposition of a particular criminal sanction.

Aggregate study

In sentencing, an aggregate study is a research methodology

that compares overall rates of crime and imprisonment across a

jurisdiction, or between jurisdictions, rather than at the level of

individual offenders.

Cognitive bias

A cognitive bias is the human tendency to make systematic

errors in judgment, knowledge and reasoning. Such biases can

result from the use of information-processing shortcuts called

‘heuristics’ (defined below).

Criminal learning environment

Social learning theory suggests that people learn behaviour

from their own immediate environment, through reinforcement,

punishment and observation of social influences (including the

influence of peers, superiors and role models). A criminal learning

environment is one in which a person learns criminal, rather than

law-abiding, behaviour.

Criminogenic

A criminogenic effect is one that produces – or tends to produce

– crime or criminality.

General deterrence

A sentencing purpose aimed at the reduction of crime by the

threat or example of a criminal sanction, directed at all potential

offenders.

Heuristic

An experience-based technique for problem solving, learning

or processing information. Heuristic methods are used to find

solutions quickly, when an exhaustive process is impractical.

Examples of this method include using a ‘rule of thumb’, an

educated guess, an intuitive judgment or ‘common sense’.

Incapacitation

A sentencing purpose aimed at the reduction of crime by

physically preventing offending, usually through imprisonment of

the offender.

Informal deterrence

The manner in which crime is reduced or prevented through the

influence of social norms that generate the threat of informal

(non-legal) sanctions, such as the prospect of rejection by peers

or of ostracism from a social group.

Labelling effect

Labelling theory (also known as social reaction theory) suggests

that labels that describe behaviour may further lead to that

behaviour, particularly if the label is negative or stigmatising. One

effect of labelling a person as ‘criminal’ may be that the person

then conforms to that description. Another effect of labelling

may be that the person labelled is then subjected to prejudice;

for example, by being labelled an ‘offender’, a person may find

it more difficult to maintain employment or social relationships,

thereby increasing the risk of criminal behaviour.

Matching study

A research methodology in which pairs of offenders are matched

for as many identical variables as possible and are differentiated

only by the experimental variable. The matching of offenders

attempts to isolate any difference in measured outcomes to the

experimental variable.

Meta-analysis

A systematic review that combines and analyses findings from

pre-existing studies, providing a summary or synthesis of an area

of research.

Perceptual study

A research methodology that involves collecting data from

individuals by measuring their responses to questions in the form

of interviews or questionnaires. Perceptual studies often use

scenarios to elicit individuals’ predicted future behaviour.

Proportionality

A common law sentencing principle requiring that, when

offenders are sentenced, the overall punishment must be

proportionate to the seriousness of the offending behaviour.

Specific deterrence

A sentencing purpose aimed at the reduction of crime through

the imposition of a criminal sanction that discourages a particular

offender from reoffending.

Totality

A common law sentencing principle requiring that, where

an offender is at risk of serving more than one sentence, the

overall effect of the sentences must be just, proportionate

and appropriate to the overall criminality of the total offending

behaviour.

Concluding remarks

The evidence from empirical studies of deterrence suggests that the threat of imprisonment generates a small general deterrent effect. However, the research also indicates that increases in the severity of penalties, such as increasing the length of terms of imprisonment, do not produce a corresponding increase in deterrence.

It has been suggested that harsher penalties do not deter because many crimes are committed in circumstances where it is difficult to identify when, or if, offenders have considered the consequences of their criminal behaviour. In addition, otherwise rational individuals are more strongly influenced by the perceived immediate benefits of committing crime and individuals ‘discount’ the cost of future penalties.

A consistent finding in deterrence research is that increases in the certainty of apprehension and punishment demonstrate a significant deterrent effect. Perceptions about the certainty of apprehension, for example, may counter the ‘present bias’ and reinforce the potential cost of committing crime. This result is qualified by the need for further research that separates deterrable from non-deterrable populations.

Research into specific deterrence shows that imprisonment has, at best, no effect on the rate of reoffending and often results in a greater rate of recidivism. Possible explanations for this include that:

a)        prison is a learning environment for crime,

b)        prison reinforces criminal identity and may diminish or sever social ties that encourage lawful behaviour; and

c)        imprisonment is not the appropriate response to many offenders who require treatment for the underlying causes of their criminality (such as drug, alcohol and mental health issues).

Harsh prison conditions do not generate a greater deterrent effect, and the evidence shows that such conditions may lead to more violent reoffending.

The empirical evidence on the effectiveness of imprisonment as a deterrent to crime suggests that the purposes of sentencing should be considered independently – according to their own merits – and that caution should be exercised if imprisonment is to be justified as a means of deterring all crimes and all kinds of offenders.

Glossary

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28

All Sentencing Advisory Council publications are available at

www.sentencingcouncil.vic.gov.au

Measuring Public Opinion about Sentencing

This paper is designed to consider some of the methodological issues

that arise when measuring informed public opinion about sentencing.

Myths and Misconceptions: Public Opinion versus Public

Judgment about Sentencing

The Myths and Misconceptions: Public Opinion versus Public Judgment about

Sentencing research paper provides analyses of both the substantive and

methodological issues in the field, with discussion of the way to progress

the capacity of the Council to gauge public opinion on sentencing in

Victoria.

More Myths and Misconceptions

More Myths and Misconceptions revisits some of the key messages

derived from the original Myths and Misconceptions paper and updates

these findings with the most recent research available.

Gender Differences in Sentencing Outcomes

Gender Differences in Sentencing Outcomes considers differences in

sentencing outcomes for men and women. The report examines

research literature and presents data from Victoria on police recorded

offending and police statistics.

Mandatory Sentencing

This Sentencing Matters research paper aims to inform people about

mandatory sentencing, which is an ongoing topic of debate in the

community.

Alternatives to Imprisonment

One of the statutory functions of the Sentencing Advisory Council is

to gauge public opinion about sentencing matters. This report presents

evidence of community views in Victoria about the use of alternatives to

imprisonment.

Other publications of the Sentencing Advisory Council

Authored for the Sentencing Advisory Council by Donald Ritchie.

Project managed by Nina Hudson.

Published by the Sentencing Advisory Council

Melbourne Victoria Australia.

© Copyright State of Victoria, Sentencing Advisory Council, April 2011.

This publication is protected by the laws of copyright. No part may be

reproduced by any process except in accordance with the provisions of

the Copyright Act 1968 (Cth).

ISBN: 978-1-921100-68-0 (Print)

978-1-921100-69-7 (Online)

Also published at www.sentencingcouncil.vic.gov.au.

Authorised by the Sentencing Advisory Council, 4/436 Lonsdale Street,

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