Chronicle Of Disgorgement’s Death Forestalled
November 3, 2021
Every time a federal judge sentences a criminal defendant, the law requires the judge to consider the need for the sentence imposed to deter criminal conduct. Judges in turn often rely on this factor to justify the length of the prison terms they impose. Two pieces of scholarship published last month, however, once again demonstrate that the traditional theory of deterrence has no empirical basis, point toward alternatives to achieving deterrence without lengthy prison terms, and provide an occasion for rethinking traditional deterrence theory as it applies to federal sentencing. In my latest blog post, “The Cost Of Affording Deterrence,” on The Insider: White Collar Defense and Securities Enforcement hosted by Forbes, I discuss how the recent scholarship confirms that to deter crime, the certainty of detection likely matters more than the severity of punishment, and how courts should consider—and counsel should consider advocating for—ways in which other components of a criminal sentence (i.e., the terms of supervised release) can serve the goal of deterrence better than longer prison terms.