The Cost Of Affording Deterrence
November 16, 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 “deterrence” factor to justify the length of the prison terms they impose, on the theory that painful sentences will discourage both the defendant in the specific case as well as the public at large from committing further crimes. Two pieces of scholarship published last month, however, argue 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.