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Extant evidence indicates that individual perceptions of the certainty, severity, and swiftness of punishment have essentially no correlation with actual levels of those measures of risk prevailing in the area in which the individuals reside. This suggests that public policies that are designed to reduce crime by increasing the deterrent effect of punishment are unlikely to succeed because they are not likely, in general, to increase prospective offenders’ perception of the legal risks of committing crime. This does not mean that there are no deterrent effects of the threat of punishment, but only that variations in objective levels of punishment may not affect the magnitude of any deterrent effects that do exist.
There is now an enormous body of scholarly research on the question of whether higher levels of punishment for crime reduce rates of criminal behavior. While there are other mechanisms by which greater punishment levels could reduce crime, such as the incapacitative effects of incarceration or moral reformation, perhaps the most thoroughly studied mechanism is that of deterrence, in which persons otherwise inclined to commit crimes refrain from doing so because they fear the prospect of legal punishment. A person might be deterred from crime as a result of their own personal experiences with punishment, an effect commonly labeled “special deterrence” because it is specific to persons who have been punished. Or a person might refrain from crime as a result of their awareness of others being punished, and thus of the possibility that they might likewise be punished, an effect called “general deterrence,” because it can affect anyone in the general population, not just those punished (Zimring and Hawkins 1973, pp. 72–73). For this reason, general deterrent effects are potentially far more potent sources of social control than incapacitative effects or special deterrent effects.
Research on the general deterrent effect of punishment on criminal behavior has largely fallen within two broad categories: (1) macrolevel research using official crime statistics to assess the links between objective levels of punishment, such as the ratio of arrests to offenses or the average length of prison sentences, to crime rates, and (2) individuallevel “perceptual” research using survey methods to assess the links between perceptions of punishment (e.g., its certainty or severity) and self-reported criminal behavior (Paternoster 1987; Nagin 1998). Many early researchers testing deterrence propositions using macro-level data assumed that any negative associations observed between punishment levels and crime rates were due to deterrent effects. That is, the researchers commonly assumed, but did not demonstrate, links between actual punishment levels and perceptions of punishment.
The second variety of research typically used individual-level survey research to assess the effect of perceptions of punishment on (self-reported) criminal behavior. It addressed the scientific question of whether the former affects the latter, but did not directly address the policy issue that commonly lurks behind the scientific debate: do higher levels of punishment imposed by the criminal justice system produce lower rates of criminal behavior? It is possible that, even if the individual-level research indicates that there is an effect of punishment perceptions on criminal behavior, higher levels of punishment still may not increase the deterrence of criminal behavior because punitive policy efforts fail to intensify perceptions of risk in the first place (Jacob 1979, p. 584; Nagin 1998). Complicating things still further, higher punishment levels may reduce crime rates, but not by increasing general deterrence. For example, crime may be reduced through incapacitation effects, i.e. the physically restraining effects of criminals being incarcerated, or a host of other mechanisms (see Andenaes 1952 for a classic listing). Incapacitation effects could well explain most of the past macro-level findings of an apparent crime-reducing effect of certainty of arrest, conviction, or imprisonment on crime rates.
There is a modest literature on the formation of sanction risk perceptions which has generally focused on the effects of (1) an individual’s prior experience of sanctions, such as arrests or incarceration experiences, and of (2) the individual’s prior criminal behavior on perceptions of risk. In general, researchers have concluded that the more crimes a person has committed, the more crimes they are likely to have committed without suffering punishment, which reduces perceived risks – a phenomenon described by some as an “experiential effect” (Paternoster et al. 1982). Conversely, others have claimed that people will adjust their estimates of the certainty of punishment upward when they personally experience sanctions such as arrests (Horney and Marshall 1992), though most research does not support this assertion (Pogarsky and Piquero 2003).
Unfortunately, there is little empirical evidence on exactly how individuals go about gathering information on punishment risks. Their perceptions of sanctions risks could be based on the experience of their criminal friends, as Cook (1980) speculated, or on the news media, or even on fictional sources like television and movies. Kleck et al. (2005) found that the frequency with which people watched television news programs was unrelated to their perceptions of risk of punishment, but it may be the specific content rather than frequency of exposure to news that shapes perceptions. Or perhaps there is more of a media impact among more criminally inclined people, for whom news about punishment is likely to be more salient. And if national media are the primary influences, this could explain why there is only a moderate amount of variation in perceptions of legal risk across different areas – everyone is influenced by the same national media messages, rather than varying local realities. Likewise, politicians might influence public perceptions of legal risks when they run on law-and-order themes. Incumbents might boast of the high punishment levels they have helped create, while challengers might reduce the public’s perceived risk levels by criticizing incumbents for their supposedly lenient policies.
Unlike incapacitative effects, which occur regardless of how criminals perceive their punishment, deterrence can occur only to the extent that the risk of punishment is perceived by prospective offenders. The dimensions of punishment that influence its deterrent impact on criminal behavior have been summarized in the proposition that “the greater the certainty, severity, and swiftness (celerity) of punishment, the lower the crime rate will be” (e.g., Gibbs 1975, p. 5). However, a more precise restatement of this proposition, which stresses the essential role of perceptions, would be: “The greater the perceived certainty, severity, and swiftness of punishment, the lower the crime rate will be.” Of course, the abstract possibility of punishment for crime is perceived by virtually everyone. Some may believe that these risks are low, or that they are themselves unlikely to be caught and punished for any crimes they might commit, but almost everyone recognizes at least the theoretical possibility that they might suffer legal punishment if they violated the law. Nevertheless, this does not imply that increases in actual punishment levels (i.e., increases in actual certainty, severity, or swiftness of legal punishment) will increase deterrent effects and thereby reduce crime, since variations in actual punishment levels may not cause variations in the average perceived level of punishment among prospective offenders. Indeed, critics of deterrence as crime control have long pointed to this reality-perception gap as a key weakness in deterrence-based crime control policies (Zimring and Hawkins 1973, p. 45).
The answer to the simple yes/no question “Can punishment deter crime?” is almost certainly “Yes,” since at least a few people almost certainly refrain from some crimes due to a fear of legal punishment. But this is an irrelevant question from a policy standpoint since no policymakers are asking the simple yes/no policy question, “Shall we punish crime?” The more relevant policy question is: “Shall we have, as a means to crime reduction, more punishment than we have now?” It is not obvious that more punishment produces a stronger deterrent effect. because it would be uncertain whether increased punishment levels would cause increases in the perceived risk of punishment.
This way of framing the issue is pertinent because much of the debate over crime control in recent decades has been confined to variations on the theme of increasing legal punishments, and some is even more narrowly confined to strategies for increasing the severity and certainty of punishment. Thus, legislators debate bills that would mandate minimum sentences for certain crimes, increased penalties for repeat offenders, enhanced penalties for crimes committed with guns or in connection with drug trafficking, and many other strategies for increasing the severity of punishment. Law enforcement officials lobby for increased budgets and enforcement authority so that they can arrest more criminals, thereby increasing the certainty of arrest for crime. Prosecutors make similar appeals for resources that would enable them to increase the certainty of conviction. And many advocates argue for building more prisons so that both the probability and severity (length) of prison sentences can be increased.
These policy proposals are justified at least partly on the grounds that they will reduce crime through increased deterrence, by “sending a message,” “getting the word out” that crime will not tolerated, that criminals will be “taught a lesson” that crime will not be “coddled,” and that punishment will surely follow crime. Thus, it is asserted that policy changes producing increases in punishment levels will reduce crime by means of deterrence, that is, by means of an increased perception of legal risk among prospective offenders.
Deterrence theorists have routinely hypothesized about variations in the strength of deterrent effects across individuals, suggesting that various attributes of humans moderate the impact of punishment threats on criminal behavior. For example, legal threats are thought to have stronger effects on persons with greater stakes in conformity and stronger social bonds to conventional others who would ostracize them as a result of legal sanctions being imposed (Zimring and Hawkins 1973, pp. 96–128; Paternoster 1987; Nagin 1998). One might extend this reasoning to the link between actual and perceived punishment levels – perhaps the degree to which the former affects the latter is likewise moderated by some of the same variables. But even though the effect of actual punishment levels on perceived levels might vary across individuals, all theories of general deterrence nevertheless assume that the average effect is a significant positive one.
No matter how inclined and able people may be to rationally process and weigh information, and to consider potential costs and benefits of various courses of action, they cannot actually decide and act rationally unless there is at least some accuracy to their perceptions of those costs and benefits and thus some correspondence between reality and their perceptions of reality. In some realms of human activity, it is perfectly reasonable to assume a fairly close correspondence between perceptions and the realities of costs and benefits. In the sphere of economic behavior, narrowly construed, the assumption is particularly plausible, mainly because there is such a large volume of relevant information available to actors, and a relatively high degree of accuracy to that information. Consumers generally know exactly the price of different brands of goods, while investors know not only the price of a share of stock in any given firm, but also a great deal about the assets, liabilities, and past profit performance of that company. Relevant information in the sphere of market behavior is comparatively voluminous, accurate, and easily obtained. Rational behavior, and predictable responses to changes in costs and benefits, are to be expected in such information-rich environments. Shaped by research experiences in this context, it is not surprising that some economists appear to consider it self-evident that there must be at minimum a significant positive, albeit imperfect, correlation between actual risks and perceived risks (Becker 1968; Ehrlich 1973).
Criminal behavior is quite different, especially with regard to one of the main risks associated with it, punishment. Information about legal risks is limited, often inaccurate, and hard to obtain, so the correlation of actual risks and perceptions of those risks is considerably weaker than in the realm of market behavior. If prospective offenders’ perceptions of punishment risk bore no systematic relationship to punishment reality, variations in that reality would have no effect on deterrence of criminal behavior. People might well be deterred by the possibility of punishment, but they would be no more likely to be deterred in settings where risks were higher than in places where they were lower. Under such circumstances, investment in policies increasing punishment levels would be wasted, at least from a deterrence standpoint.
While a positive association between actual and perceived levels of punishment might seem patently obvious to some, there is good reason to question the linkage, and a fair amount of research on related topics that casts doubt on the assumption that the link is strong. Few people, whether criminals or noncriminals, are consumers of criminal justice statistics, and even criminals have only limited personal experience with crime and punishment. Further, depending on hearsay and gossip among their criminal associates may not be a reliable basis for forming even approximately accurate notions of levels or trends in CJS punishment activities.
Similarly, the news media provide neither criminals nor noncriminals with much reliable information on levels of either crime or punishment. At the macro-level, the amount of news coverage of legal punishment is unlikely to bear a very strong relation to the general level of actual punishment, since studies of the relationship between the volume of news coverage of crime and actual rates of crime find the relationship to be close to nonexistent (Garafalo 1981; Marsh 1989). If common punishment events such as court sentencings or admissions to prison receive even less publicity than the crimes that gave rise to them, it is unlikely that people could formulate even minimally accurate perceptions of punishment risks from news media coverage.
Indeed, various documented news media biases in coverage of crime and punishment could cause, in an irregular fashion, either overstated or understated perceptions of punishment risk. For example, some scholars have found that newspapers exaggerate the certainty of arrest by over reporting solved crimes (Roshier 1973, p. 37; Parker and Grasmick 1979, p. 371). Conversely, studies reviewed by Roberts (1992) indicate that news stories about suspects who “got off on a technicality” or who got a “slap on the wrist” sentence from a judge leads to the public perceiving the severity of sentences to be lower than it really is. Further, since estimates of the certainty of punishment necessarily reflect perceptions of the volume of criminal acts relative to punishments, the lack of correspondence between the volume of news media coverage of crime and actual crime rates may further weaken reality-perception correlations regarding the certainty of punishment.
Personal Experience Of Punishment And Perceived Future Risk
On the other hand, already active criminals might draw on their own experiences and those of close associates to formulate their perceptions of punishment risk. To the extent that they accurately stored away these experiences when they occurred, and then accurately retrieved the information later, these experiences could improve both perceptions of past legal risks and forecasts of future risks. The research on personality traits common among known offenders, however, does not encourage a view of criminals as disciplined and careful processors of information, likely to systematically recall and assess such past experiences. Indeed, within a population of persons who already evince tendencies towards risk-taking, past experience of punishment could even lead to a variant of the gambler’s fallacy: “My string of past bad luck in getting caught is due to end; my chances of avoiding arrest are bound to improve because I’ve exhausted my share of bad luck.” And of course the information situation is far worse for noncriminals, the people that deterrence-based policies are supposed to keep law-abiding. Noncriminals have no personal experience of criminal behavior leading to either punishment or no punishment, and thus no individual information base at all to use in formulating perceptions of legal risk.
Does the Experience of Punishment Increase Perceived Risk of Punishment? – The Resetting Effect (The Gambler’s Fallacy)
The special deterrence hypothesis asserts that the experience of being personally caught and punished for crime should increase the offender’s fear of future punishment, which in turn reduces criminal behavior. After all, it seems obvious that being caught doing crime should reinforce the idea that you are likely to be caught again in future if you continue committing crimes. At minimum, punishment experience should increase the punished person’s perceived certainty of punishment. Perhaps if people were thoroughly rational, this would be true. If they are not, this proposition is not at all obvious, and a good deal of empirical evidence indicates it is wrong.
A series of careful studies indicates that the experience of being caught causes many offenders to conclude that it is unlikely they would be unlucky enough to get caught the next time they try crime, almost as if they had “used up” their bad luck. Like many gamblers, they irrationally believe that a larger number of unlucky experiences somehow improve one’s odds of good outcomes in the future. Consequently, the experience of being caught doing a crime leads them to reduce their estimates of the probability of being caught in future (Paternoster and Piquero 1995; Piquero and Paternoster 1998; Piquero and Pogarsky 2002; Pogarsky and Piquero 2003; Pogarsky et al. 2005; Matsueda et al. 2006). More recently, Kleck and Barnes (2013), using survey data from a nationally representative sample of US adults, found that persons who had previously been arrested reported significantly lower levels of perceived arrest risk than those who had never been arrested (though these authors could not control for criminal behavior). Other researchers generally find no effect of arrest on perceived certainty of punishment (Piliavin et al. 1986; Pogarsky et al. 2004), or obtain very mixed findings (Wood (2007) found no evidence of an effect of punishment experience on perceived certainty, but did find a positive association of punishment experience with perceived severity). And a few other studies found that punishment experiences do appear to increase perceived certainty, as expected (Paternoster et al. 1985; Horney and Marshall 1992; Heckert and Gondorf 2000; Lochner 2007).
In sum, the full body of evidence does not indicate that experiencing a punishment will increase one’s perceived risk of future punishment. The effects of punishment on perceived risk are highly variable, and do not, across the samples of subjects studied to date, produce the results predicted by the special deterrence thesis. Instead, many caught offenders seem to “reset” their estimated probability of arrest back down to some lower level that prevailed prior to capture (Pogarsky and Piquero 2003). This may partly explain why criminogenic effects of legal punishment seem to outweigh the special deterrent and other crime-reducing effects. While personally experiencing punishment may make its unpleasantness more vivid and concrete as Andenaes suggested (this effect has never been systematically studied), its special deterrent effect is nevertheless weak because the experience of punishment does not, on average, increase the punished person’s perceived certainty of future punishment.
The Effect Of Actual Punishment Rates On Individual Perceived Risk Of Punishment
While some self-report studies have treated perceptions of punishment as a dependent variable, only a handful have assessed the impact on those perceptions of actual punishment levels prevailing in the person’s area. One early study examined, in a limited way, the association between actual and perceived punishment levels. Erickson and Gibbs (1978) surveyed a random sample of Phoenix residents, asking them to estimate the probability of arrest for ten different offenses. Comparing their collective estimates with police statistics on arrest probabilities, they found a 0.55 Pearson correlation (rho ¼.39) between objective and perceived certainty of arrest, across ten offenses (p. 259). This study addressed variation in perceptions only across offense types rather than across individuals, and in arrest certainty across offense types, rather than across areas or time periods.
The most extensive investigation of the link between actual punishment levels and individual perceptions of punishment risk was conducted by Kleck and his colleagues (2005), and examined the perceived risks of punishment of persons interviewed in a national telephone survey of a representative sample of urban US adults. Their perceptions of the risk of arrest, conviction, sentencing to prison, average prison length, and swiftness of punishment for four different crime types were compared with the actual risks prevailing in the survey respondents’ areas, as measured with official police and court data. The findings indicated that associations between perceived and actual legal risks were not significantly different from zero, for any of the types of risk or offense types.
Thus, there appears to be no significant association between perceptions of punishment levels and the actual levels of punishment that CJS agencies achieve, implying that increased actual punishment levels do not routinely reduce crime through general deterrence mechanisms.
Are Average Collective Perceptions Of Legal Punishment Risk More Accurate?
Scholars from a diverse array of disciplines, addressing a wide variety of specific subjects, have argued that there is a “collective wisdom” in large populations that is not evident when one studies only individuals. For example, students of public opinion have theorized that “averaging many individuals’ survey responses… tends to cancel out the distorting effects of random errors in the measurement of individuals’ opinions” (Page and Shapiro 1992, p. 15), resulting in aggregated public opinions regarding policies and political leadership that are stable, meaningful, and responsive to changes in available information.
Does a sort of “collective wisdom” concerning punishment risks prevail at the aggregate level for local populations that is not evident at the level of individual persons? Perhaps the average perception prevailing within a population may correspond closely to punishment realities, even if any one individual substantially overor underestimates risks. In his review of early deterrence research, economist Philip Cook (1980) acknowledged that many individuals may not react to changes in punishment risks in rational or predictable ways, but argued that some do, and therefore average population-wide perceptions may well respond to shifts in actual risks generated by the criminal justice system in a predictable and “rational” way. With respect to the deterrence of robbery, he hypothesized that “an increase in the true effectiveness of the system results in a corresponding increase in the mean of robbers’ perceptions of effectiveness, and an increase in the number of robbers who are deterred,” mainly because “the likelihood that a prospective offender will observe one or more friends apprehended is increased when the overall effectiveness of the system increases” (p. 225). If Cook is correct, increases in actual punishment levels should produce increases in average levels of perceived punishment risk, and thereby increase deterrent effects, even if there is little correspondence evident at the individual level between perceptions of system effectiveness and actual effectiveness.
There are strong theoretical reasons to expect that this gap is a large one, and that perceptions of the risk of legal punishment are likely to have at best only a weak relationship with actual risks. First, people have limited capacities, or inclinations, to acquire, retain, and later make use of information, especially with respect to crime and punishment (Simon 1957; Kleck 2003). Defending the deterrence doctrine, Cook (1980) argued that deterrent effects could still exist in the face of limited information about the prospects of punishment, implying that incorporating these limits required only a modest revision of deterrence theory.
Second, people display certain consistent biases in acquiring, retaining, and using information, which tend to weaken the connection between actual contingencies such as legal risks, and peoples’ perceptions of them. Tversky and Kahneman (1974; Kahneman and Tversky 1979) demonstrated in a long series of experiments that people faced with the need to decide under conditions of uncertainty make use of “a limited number of heuristic principles which reduce the complex tasks of assessing probabilities and predicting values to simpler judgmental operations” (1974, p. 1124). These simplified decision rules may often produce reasonably successful outcomes, but they also result in consistent deviations from what utility maximization would predict, yielding decisions that, from the standpoint of orthodox rational choice theory, are “irrational.” People deviated from simple rationality, in consistent ways, which the authors called “biases.”
For example, people tend to ignore the prior probability of outcomes of a decision, and thus ignore the “base rate” or population-wide probability of it occurring. Regarding the deterrent effects of punishment, this implies that it may, for most people, be irrelevant what the population-wide probability of being caught when committing a crime is, perhaps because people give far more weight to their own experiences than to those of others, even if their own experiences may be very unrepresentative and unlikely to be repeated, and the experiences of a large population would provide a much more reliable basis for forecasting future risks for the individual. If the “base rate” information is irrelevant to decision-making, people are unlikely to acquire and retain such information in the first place.
The only direct test of the collective wisdom hypothesis found no support for it (Kleck and Barnes 2013). Regardless of whether one focuses on perceptions of individual persons, or the average of perceptions among large populations, there is generally no significant association between perceptions of punishment levels and actual levels of punishment. This in turn implies that increases in punishment levels do not routinely reduce crime through general deterrence mechanisms since the fundamental link between actual punishment levels and perceptions of punishment levels appears to be weak to nonexistent. Increases in punishment might reduce crime through incapacitative effects, through the effects of treatment programs linked with punishment, or through other mechanisms, but they are not likely to do so in any way that depends on producing changes in perceptions of risk.
These findings do not, on the other hand, imply that punishment does not exert any general deterrent effect. Rather, they support the view that any deterrent effect, however large or small it may be, does not covary with actual punishment levels to any substantial degree, since the perceptions of risk on which deterrent effects depend generally do not covary with punishment levels, within the range of levels prevailing in contemporary urban America. There may be some baseline level of deterrent effect generated by punishment-generating activities of the criminal justice system, but this level apparently does not consistently increase with increased punishment levels or diminish with decreased punishment levels. Thus, increased punishment levels are not likely to increase deterrent effects, while decreased punishment levels are not likely to decrease deterrent effects.
For those seeking ways to improve crime control, these findings suggest a need for either Deterrence: Actual Versus Perceived Risk of Punishment (1) a shift in resources towards strategies whose success does not depend on general deterrence effects, or (2) different, nonroutine methods for generating effective deterrence messages. One approach in the latter category is to more narrowly target very specific deterrence messages at audiences who are at especially high risk of committing crimes in the near future. This was the main idea behind a program implemented in Boston and aimed at reducing youth gang violence. Rather than using apprehension, prosecution and punishment to send very broad “wholesale” deterrence messages aimed at the general population, the Ceasefire program delivered direct and explicit “retail deterrence” messages to a relatively small target audience of gang members and potential members. Unfortunately, evaluations of this sort of program are limited (Kennedy 1997).
It is also possible that unusually highly publicized punishment events may generate deterrent effects that the routine, largely unpublicized punitive activities of the criminal justice system do not. For example, it has been asserted that highly publicized executions exert an effect, albeit a possibly temporary one, on homicidal behavior (Phillips 1978; Stack 1987), and the same might be true of less extreme punishments, such as incarceration, if sufficiently publicized. There is, however, no persuasive evidence bearing on publicized punishment events other than executions or death sentencings. Further, there is a severe upper limit on how much publicity dependent deterrent effects could be increased, since the very newsworthiness that is essential for gaining publicity would, in the absence of direct state control over news media, decline as soon as a given type of punishment event became more common. A few punishment events are highly publicized for a time, and may shift perceptions of legal risk upwards, but such effects are likely to be temporary, lasting only as long as the associated crime is the news media story du jour.
Criminals’ awareness of legal risks may be largely confined to the most conspicuous features of their immediate environments at the time a crime is contemplated. They are aware of the presence of a police officer, patrol car, or bystander who might intervene or summon the police, but are not sensitive to the overall likelihood of arrest in their areas. These localized perceptions, however, may do little more than displace offenders to other places and times rather than deterring offenses altogether.
One can view prospective offenders’ responses to punishment levels as characterized by a severely constricted rationality. While many people are capable of weighing perceived risks and rewards when deciding whether to do crime, they typically possess so little accurate information about key risks and rewards that this capacity for rational decision-making remains to a great extent inoperative.
The research linking perceptions of legal risks to actual risk levels has so far been cross-sectional in nature, and thus has not directly assessed the impact of changes over time in legal risk on perceived risks. Thus, while cross-area differences in objective risk appear not to influence differences in perceived risk across areas, further perceptual research, perhaps using a panel design, is needed to definitively establish whether changes in actual punishment levels produce changes in perceived risk.
It remains possible that prospective offenders are sensitive to changes in legal risks, but only for short periods of time. Thus, deterrent effects of legal threats might be elevated, but for so short a time that these effects are not evident in research using temporal units of analysis as long as years or months. For example, executions may deter homicides in the days just before or after the event, but analysts studying homicide counts for years would miss the effect because the number of homicides deterred would be tiny relative to annual murder counts. Thus, perceptual research examining crime levels in shorter time periods than years or months may prove useful.
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