This review of the criminal deterrence literature focuses on the questions that are largely missing from many recent, excellent, comprehensive reviews of that literature, and from the literature itself. By “missing” I mean, first, questions that criminal deterrence scholars have ignored either completely or to a large extent. These questions range from fundamental (the distributional analysis of the criminal justice system), to those hidden in plain sight (economic analysis of misdemeanors), to those that are well-known yet mostly overlooked (the role of positive incentives, offender’s mental state, and celerity of punishment). I also use “missing” to refer to the areas where substantial relevant knowledge exists but is largely disregarded within the criminal deterrence research program. The empirical analysis of environmental and tax compliance are two stark examples. Finally, I stretch “missing” to describe topics that have been both studied and reviewed, but where substantial challenges remain. These include the theoretical explanation for the role of offense history, the proper accounting for the offender’s gains, the estimation of the costs of various crimes, and the cost-benefit analysis of crime-reduction policies.
Among the literature’s missing pieces, several stand out both on their own and because they combine to produce a highly unfortunate result. First, the literature makes only a minor effort to estimate the cost of crime, and essentially no effort to estimate the cost of white-collar offenses. Combined with no centralized reporting of white-collar crimes and, therefore, no empirical analysis of them, the literature adds to the impression – not supported by the available evidence – that street crime is a great social problem while white-collar crime is a minor one. Second, the literature fails to treat misdemeanors (and misdemeanor enforcement) as an independent subject of study. This creates an impression – also unjustified – that thirteen million or so misdemeanor charges a year – and countless millions of stops, frisks, and interrogations that lead to no charges – all heavily skewed by race and class – are not a major social problem either. Third, the literature is only starting to develop a benefit-cost analysis of various crime-reducing strategies. This analysis almost exclusively considers measures reflected in the optimal deterrence model and, therefore, internal to the criminal justice system. This creates an impression – almost surely false – that deterrence is the only means of reducing future crime. Finally, the literature ignores distributional analysis altogether, even though the burdens of crime and the criminal justice system vary dramatically, predictably, and disturbingly by race and income. By disregarding this variation, the literature may be reinforcing it. For all these reasons, the criminal deterrence literature may well be contributing to the overwhelming, singular focus of American society and law enforcement on the forceful deterrence of street crime. Addressing the missing pieces would enrich the literature, expand its appeal and policy-relevance, and enable academics to contribute to the effort of setting the US criminal justice system on the path of long-overdue structural reforms.
Criminal Deterrence: A Review of the Missing Literature,
Supreme Court Economic Review, forthcoming; Columbia Public Law Research Paper No. 14-661; Columbia Law & Economics Working Paper No. 621
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