Does Criminal Law Deter? A Behavioral Science Investigation

Abstract

Does criminal law deter? Given available behavioral science data, the short answer is: generally, no. The behavioral sciences increasingly call into question the assumption of criminal law's ex ante influence on conduct. Potential offenders commonly do not know the legal rules, either directly or indirectly, even those rules that have been explicitly formulated to produce a behavioral effect. Even if they know the rules, the cost-benefit analysis potential offenders perceive - which is the only cost-benefit analysis that matters - commonly leads to a conclusion suggesting violation rather than compliance, either because the perceived likelihood of punishment is so small, or because it is so distant as to be highly discounted, or for a variety of other or a combination of reasons. And, even if they know the legal rules and perceive a cost-benefit analysis that urges compliance, potential offenders commonly cannot or will not bring such knowledge to bear to guide their conduct in their own best interests, such failure stemming from a variety of social, situational, or chemical influences. Even if no one of these three hurdles is fatal to law's behavioral influence, their cumulative effect typically is.

Keywords: Deterrence, punishment, social science

JEL Classification: K14