Crime and Punishment in American History - Lawrence M. Friedman [292]
Why does the criminal justice system deliver so little punch? There are many reasons. The courts can hardly convict somebody if the police do not catch him. It is not that easy to catch a robber or burglar in a vast, anonymous, complex society. Courts also cannot convict without strong evidence—which they often do not have. Whatever the reasons, not very much can be realistically changed, in the short run at least. The American system of criminal justice did not appear out of nowhere; it is a piece of American society, and it cannot be radically altered in ways that contradict the basic ground rules of society. We tolerate corruption and brutality so long as we are not the victims. But there are limits to our tolerance; and victims are more and more likely to fight back. Almost everybody seems to want more muscle in the system; but where can the muscle come from? A system that is surgically swift and ruthlessly efficient is simply not in the cards. A Hitler can arrest, try, sentence, and kill in days, and never worry about making a mistake or two along the way. Our system (to its credit) does not have this kind of steel.
Deterrence is a fact, not a mere theory; there is no reason to doubt that deterrence works. But the question is, how does it work—and on whom, and to what effect? What the public wants is more deterrence, deterrence at the margins; and it is hard to make that happen. Most people start out already deterred; they do not rob, rape, and kill because they think it is dead wrong to rob, rape, and kill. They may also be afraid of punishment, any punishment. Potential punishment is already pretty severe, despite the complaints of the law-and-order people. People imagine that the system mollycoddles criminals; but in fact, for those crimes that police, prosecutors, and judges consider really serious (and not “garbage” or “bullshit” cases), the system is and can be extremely tough—right now.25 Adding a year or two to the average sentence makes the punishment in theory more severe; and, presumably, brings about a reduction in crime. But how much? If, say, a yacht dealer raises his price from $100,000 to $101,000, it is doubtful that the dealer will sell fewer yachts, although, in theory, all else being equal, that should be the tendency. Roughly the same can be said of deterrence through punishment.
The relationship between punishment and behavior is not a straight line but a curve; it flattens out as more and more people are, in fact, deterred. The few that are left become harder and harder to influence.26 If the punishment for armed robbery (assuming we catch the robbers) goes up from seven to ten years (assuming, too, we can make the judges do this), will there be less armed robbery? In theory, yes. But in practice, who knows? Most of us are already deterred—by conscience, habit, fear. The few who are left are the toughest cases. And a marginal change in punishment is not likely to produce much more in the way of “incapacitation” than we have right now—even if the vacuum does not get filled with fresh crime recruits.
The criminal justice system has a way of reducing to the banal experiences that are among the most intense imaginable. A crime becomes a mere statistic, a tiny electronic shiver in a data base; but each crime is also an event, an eruption, a happening of great force and power on the individual level. Rage, hopelessness, desperation, anger, and fear accompany each act of murder, rape, robbery, or assault. For the most part, society depends not on cages and cops but on the inner iron of socialization to keep us in line. But if inner controls fade and weaken even slightly, then we have to face the bitter truth: socialization as we know it now cannot