Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures

4. Can offendersbe deterred?

4. Can offendersbe deterred?

While MMS may serve political ends (placating public indignation about one or more serious crimes) and retributive goals, deterrence is presumably an important aspect of such penalties. Incapacitation alone, whether for retributive or utilitarian reasons, may ultimately prove far too costly to sustain MMS. If there is no deterrent effect, the correctional system is likely to face a crisis due to the continual growth of the prison population. Deterrence offers the hope that any short-term increases in the prison population produced by MMS will be offset by long-term reductions arising from declining crime rates.

A number of recent developments and studies in the field shed light on the potential deterrent effect of prison sentences. Most of these studies relate to legal sanctions and incarceration in general; they do not tend to distinguish between mandatory and other types of penalties.

4.1 The Rational Choice Perspective

The deterministic view that social, biological, and psychological forces shaped behaviour was dominant throughout most of the 20th century. While some criminality undoubtedly is an expression of pure rage and often involves impaired judgment due to intoxicants (Wolfgang, 1958; Innes, 1986), an important development in criminological theorizing over the past two decades has been the emergence of the rational choice perspective (Siegel and McCormick, 1999). While not assuming complete rationality (Harding, 1990), proponents regard offenders as active decision-makers, rather than simply as passive actors responding to adverse social conditions and psychological needs. Offender decision-making encompasses a whole range of choices, aside from the decision to commit a crime. Offenders are seen as deciding on the timing and location of their offences, choosing specific targets (whether people or premises), and making decisions about the means (e.g., weapons) they will use to commit their offences. Documented patterns in different crimes show that crimes are not merely committed in a random fashion. Dozens of case studies, often involving interviews with offenders, display their decision-making processes and decision criteria (Clarke, 1997). Studies also show that many offenders are anything but indifferent to the risks, including imprisonment, associated with their crimes (Brown, 1997; Gabor et al., 1987). In this context, risk usually refers to the likelihood of arrest and punishment, rather than its severity. Furthermore, studies in this area show that much crime is committed by a larger pool of individuals responding to situational factors (e.g., opportunities, risks, and transient motives) favourable to crime, rather than simply a smaller group of hardcore offenders (Gabor, 1994).

4.2 Offender Characteristics

A series of studies appears to contradict the view of offenders as rational and of crime as largely opportunistic as they suggest that:

  • 1) Among the strongest correlates of criminality are antisocial attitudes and associates, a history of antisocial behaviour, and antisocial personality, indicating that offenders are strongly predisposed to committing their crimes (Gendreau et al., 1992; Simourd and Andrews, 1994);
  • 2) Only a small proportion of incarcerated offenders are “calculators”, carefully weighing the costs and benefits of their crimes (Benaquisto, 2000);
  • 3) Many offenders would prefer to go to prison than face community sanctions and do not differentiate between a prison sentence of three and five years (Spelman, 1995; Petersilia and Deschenes, 1994; Crouch, 1993; Petersilia, 1990);
  • 4) Incarceration does not appear to reduce re-offending as offenders receiving custodial sanctions have recidivism rates similar to those receiving community dispositions (Gendreau et al., 1999).

The apparent contradictions between the rational choice perspective and the more pessimistic studies just cited might be reconciled by the fact that the former applies to a wider pool of offenders and potential offenders, whereas the latter deal with re-offending among a more intractable group of offenders, many of whom have been previously incarcerated. Some evidence does show that those who have been previously punished are the most likely to recidivate (Greenfield, 1985). Thus, criminal sanctions may exercise a greater deterrent effect in relation to those with limited previous justice system contacts. Incapacitation, on the other hand, may be more effective than the threat of sanctions in dealing with the smaller, hardcore, persistent criminal element that is responsible for a disproportionate amount of crime.

Put negatively, deterrents will be relatively ineffective in dealing with hardcore offenders and incapacitation policies may be wasteful in dealing with those (the population at large) who may commit crimes only occasionally and who respond to the mere threat of sanctions and moral persuasion (von Hirsch et al., 1999). The “offender population” is certainly not monolithic and a key, largely unresolved issue is the proportion of different types of offenders who are, in fact, intractable. It may be that the distribution of hardcore versus occasional offenders is offence specific. For example, more robbers than impaired drivers may qualify as hardcore, committed offenders.

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