Castaneda 1 Caleb Castaneda Professor Chrappa Crime and Punishment 16 October 2013 Against Deterrence In reading through the

various critiques of various theories of punishment, it seems to me that almost no one ob ects to deterrence as a proper and legitimate role in punishment! "ven #e$is, $ho came nearest to opposing the concept of deterrence, did not reall% ob ect to the legitimac% of deterrence! &or he claims that '(e ma% ver% properl% as) $hether *the punishment+ is li)el% to deter others and to reform the criminal, -#e$is 1./0! It is not the concept of deterrence qua deterrence to $hich he ob ects! It is onl% the concept of deterrence absent an accompan%ing concept of ust deserts1 after all, in #e$is2s vie$ 'the concept of 3esert is the onl% connecting lin) bet$een punishment and ustice, -1./0! 4o$ever, I am opposed to an% concept of deterrence in meting out an% punishment at all, for at least three reasons5 10 deterrence can lead to the meting out of punishment to individuals $ho are )no$n to be innocent, if such $ould have a deterrent effect1 20 the notion of deterrence tends to$ard a social engineering role of punishment, as opposed to a principle of harm1 30 deterrence has as its ob ect innocent people! 6s #e$is does a ver% good ob of summari7ing the first ob ection to deterrence, I $ill not reiterate it -#e$is 1800! I $ill focus on the second and third ob ections to deterrence! 9efore presenting these ob ections, I $ant to briefl% give an account as to ho$ deterrence gained such a sterling reputation in the first place! It seems to me that deterrence gains some plausibilit% b% pigg%bac)ing on a legitimate purpose of punishment! &or it seems to me that restraint is an unimpeachable motive for punishment, and it seems li)e$ise indubitable that the possibilit% of being so restrained $ill often give rational agents sufficient motivation to avoid

Castaneda 2 criminal acts! :o it seems right to sa% that legitimate punishment $ill often have deterrent effects! 9ut from this, $e ought not infer that this side effect of legitimate punishment ought to, of itself, be a motivation for punishment! Deterrence in its Social Engineering Role One of m% assumptions, $hich for the purposes of this paper must remain e;actl% that, is that punishment is illegitimate if there has been no harm! I call this the harm principle, but inasmuch as 'harm, could be interpreted ver% broadl%, I $ant to further limit it! I $ant to restrict the harm principle to identifiable harm5 in other $ords, for there to be a proper ob ect of punishment, there needs to be a victim! <o$, I $ill grant that the purpose of deterrence could be interpreted completel% in compliance $ith this principle! One could be a proponent of deterrence and %et claim that societ% onl% legitimatel% deters $hen it deters actions that cause identifiable harm! 4o$ever, $hile there is no logical contradiction in such a claim, it seems to me that it is impracticable! =his is because the concept of deterrence institutionali7es punishment! Once one has admitted deterrence of crime as a legitimate goal, then one empo$ers the state to define crimes in the conte;t of deterrence! (hereas $ithout such a principle a victim or an advocate of a victim $ould have to see) remed% in the courts, the institution of la$ as a deterrent creates a ustice s%stem $hich is focused on udging compliance $ith la$ rather than $ith ensuring reparations to victims of crime! =he subtle shift in the focus of the ustice s%stem creates the ver% s%stem that is currentl% prevailing5 a s%stem in $hich incarceration for victimless crimes is the norm! Indeed, b% some accounts, non>violent offenders ma)e up almost three>fourths of the federal prison population in the ?nited :tates -:entencing Pro ect 10! (hile it is true that violent crimes are not the onl% crimes that can create victims, some reports are that 88@ of these individuals in federal prison are serving time for drug offenses, $ith the ma orit% of those being lo$>level drug offenders

Castaneda 3 -:entencing Pro ect 10! =hese sorts of cases are clearl% not in compliance $ith the principle of identifiable harm, and $ould be impossible if societ% did not create institutions designed to prevent crime! Deterrence has the wrong object One of the biggest problems $ith deterrence is that it focuses its attention, not on the perpetrator, but rather on the societ% as a $hole! (hen one sa%s that deterrence is a legitimate role of punishment, one is reall% sa%ing that it is legitimate to threaten individuals $ho have done no $rong! '#isten up,, the advocate of deterrence $ould have us sa% to societ%, 'let this be a lesson to %ou! Aeep on the right path or the same $ill happen to %ouB, 6n advocate for deterrence might sa% that, in this, deterrence is no different from restraint! 6fter all, the ob ect of restraint is also the societ%! (hen societ% restrains the criminal, it acts to protect the societ% against the perpetrator! :o it might seem that punishment can have as its legitimate ob ect non>offending members of societ%! It is to be granted that societ% benefits from restraint, and in that respect restraint is done $ith non>offending members in vie$! 9ut it seems to me that the t$o cases are not the same! In the case of restraint, members of societ% are being protected! I $ould hesitate to call that an% punishment at all! 9ut in the case of deterrence, societ% is actuall% being threatened, $hich is itself a form of punishment! :o, if deterrence is the motive of punishment, it seems that punishment is being meted out against the societ% as a $hole along $ith the offender! In realit%, deterrence is superfluous! If the role of punishment is to restrain incorrigible $rongdoers and ma)e the victim $hole, then deterrence serves to accomplish nothing that restraint and restitution do not! #egitimate punishment alread% has a deterrent effect! =here is no need to ma)e that deterrent effect the purpose of the punishment! &or all these reasons, I maintain that deterrence as a motivation for punishment is illegitimate!

Castaneda . (or)s Cited #e$is, C!:! '=he humanitarian theor% of punishment, The Twentieth Century: An Australian Quarterly Review, 3-30, 8>12! In class resources! Print The ederal !rison !opulation: A "tatistical Analysis# 6 report of =he :entencing Pro ect! (ashington, 3C, 2008! 6ccessed at5 http5CC$$$!sentencingpro ect!orgCdocCpublicationsCincDfederalprisonpop!pdf 16 Oct 2013! (eb!