Friday, November 21, 2014

In Search of Guiding Principles - Deterrence

Two months ago, there was a mini uproar following proposed increases in fines and penalties for traffic rule violations (see here, for instance). The officials stated that such an increase was necessary to curb how the laws are currently flouted, and in turn realise greater road safety for India. At the start of this year, a similar logic led to higher sentences for rape offences [vide, the Criminal Law (Amendment) Act 2013], and has informed several decisions on criminalisation in India over the past two decades.

Its a familiar claim: punishment serves as a deterrent to prevent other individuals from following the same course of proscribed actions. No one, it is believed, would rationally wish to spend time in the can, ergo they will not engage in bad behaviour. Identifying deterrence as the rationale for punishment has provoked several debates over the last century. Those interested are suggested to read a collection of lectures by Professor H.L.A. Hart, entitled Punishment and Responsibility (second edition available here), and another collection entitled Principled Sentencing (edited by Professors Ashworth, Von Hirsch and Roberts and available here). Introductions aside, lets proceed to the issue.

Does criminal law really deter? Or is it merely one factor in a combination that achieves the important deterrent effect. Professors Robinson & Darley asked this question ["Does Criminal Law Deter? A Behavioural Science Investigation" 24(2) Oxford Journal of Legal Studies 173 (2004)] and the results were very interesting, and obvious. Criminal law - the set of rules which identify liability and punishment - by itself, has little or no deterrent effect. Further, the quantum of punishment in fact does not yield the kind of deterrent or unpleasant effects which legislators wish for. Lengthening incarceration makes most convicts adapt to prison life, rather than repent their actions.What can actually help in realising deterrence is enhanced enforcement and timely disposal of cases which keep the threat of punishment immediate. On both counts, India is found sorely lacking. Potential offenders therefore have little to fear, and recent news reports show how this is revealing itself in frightening forms (two suspects were arrested for murdering a police officer in Delhi last month).

The assumption that criminal law and heavy penalties influence behaviour is horribly inaccurate. Unfortunately, this very readily available research continues to be ignored by our legislators, who persist in hiking penalties in criminalising other behaviour driven by the charm of deterrence. One hopes, that a little more thought would go into imposing jail terms for certain acts in the future.

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