NCJ Number
55279
Date Published
1978
Length
25 pages
Annotation
FALLACIES IN THE BELIEF THAT DETERRENCE IS A LEGITIMATE GOAL OF PROSECUTION ARE EXPLORED.
Abstract
BECAUSE THE CONCEPT OF DETERRENCE INVOLVES DISCOURAGING CERTAIN ACTIONS BY IMPOSING SANCTIONS, AND BECAUSE THE PROSECUTOR IS A SYMBOL FOR THE IMPOSITION OF LEGAL SANCTIONS, IT IS A NATURAL, LOGICAL LEAP TO THE ASSUMPTION THAT THE PROSECUTOR EMBRACES DETERRENCE AS A GOAL AND ACTS ACCORDINGLY. BUT A PURELY LEGALISTIC VIEW OF DETERRENCE IS A VERY NARROW ONE. AN UNDERSTANDING OF THE PROCESS THAT KEEPS THE VAST MAJORITY OF THE POPULATION LAW-ABIDING SHOULD BE SOUGHT IN THE BROAD SYSTEM OF SOCIAL CONTROL, NOT JUST IN THE SMALL SEGMENT OF THAT SYSTEM CALLED CRIMINAL JUSTICE OR IN THE EVEN SMALLER SEGMENT CALLED PROSECUTION. IT IS NOT POSSIBLE TO MEASURE THE CONTRIBUTIONS OF PROSECUTION TO DETERRENCE WHEN THE BROADER PERSPECTIVE IS TAKEN. A SECOND FACTOR MITIGATING AGAINST THE VIEW THAT DETERRENCE IS A MAJOR PROSECUTORIAL GOAL IS THAT THE PROPERTIES ASSOCIATED WITH DETERRENCE (CERTAINTY, SEVERITY, AND SWIFTNESS OF PUNISHMENT) ARE ESSENTIALLY BEYOND THE PROSECUTOR'S CONTROL. A THIRD FACTOR IS THE OBSERVATION THAT PROSECUTORS THEMSELVES, IN THEIR POLICIES AND DECISIONMAKING PROCESSES, RARELY CLAIM DETERRENT POWERS OR GOALS. DETERRENCE IN A LEGAL CONTEXT CLEARLY IS MORE THE DOMAIN OF LAW ENFORCEMENT AGENCIES AND THE COURTS THAN OF PROSECUTION. THE PROSECUTOR INTERACTS WITH THESE OTHER COMPONENTS OF THE CRIMINAL JUSTICE SYSTEM, PLAYING A SUPPORTIVE AND CONTRIBUTORY ROLE BUT NOT STRIVING TOWARD DETERRENCE AS A GOAL. ALTHOUGH PROSECUTORS CAN EXERCISE LITTLE CONTROL OVER THE ESSENTIAL ELEMENTS OF DETERRENCE, THROUGH PRIORITY PROSECUTION THEY CAN BE HIGHLY EFFECTIVE IN REMOVING FROM GENERAL POPULATION THE FEW OFFENDERS WHO ACCOUNT FOR THE MAJOR PROPORTION OF CRIMINAL ACTIVITY. COMMUNITY PROTECTION THROUGH INCAPACITATION SEEMS A MORE ARGUABLE PROSECUTORIAL GOAL THAN DETERRENCE. A LIST OF REFERENCES IS INCLUDED. (LKM)