Why The Criminal Justice System Gave Up On Punishing Criminals

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I have talked a lot about the collapse of the criminal justice system. The very concept of criminal justice — of enacting justice, and punishing crime — has been destroyed. But very few people ever take the time to trace the roots of our current state of lawless anarchy back to its origins. And the thing is, you don’t need to trace the roots very far.

There is a reason why we now live in a country governed by people who don’t believe in simply enforcing the law and punishing lawbreakers. These are people who are operating according to certain particularly crazy set of beliefs. And one of those beliefs is that deterrence doesn’t exist. Effectively, you cannot deter crime by punishing it. That’s the insane idea that began in our institutions of higher learning — the sort of insane idea that can only begin in our institutions of higher learning — and filtered its way down from there. As these ideas always do.

It began with the claim, first made years ago, that the death penalty doesn’t deter crime. This was always false, for reasons we’ll touch on later. But whatever you think of the death penalty, the implication underlying this “deterrence” argument was never going to stop with the death penalty. It was always going to progress far beyond that. And indeed, we’ve seen that progression in recent years. It’s no longer, “The death penalty is pointless because people don’t consider those consequences when they commit crime.” Instead, the argument we’re hearing today is, “All harsh punishment is pointless because people don’t consider any consequences when they commit crime.”

This is the intellectual origin of the “soft-on-crime” approach to law enforcement that we’re seeing in every major city in the country right now. And several years ago, this approach was adopted by the Obama DOJ without any fanfare whatsoever. In May of 2016, the National Institute of Justice, which is the research arm of the DOJ, published a document entitled, “Five Things About Deterrence.” You’ve probably never heard of this document but it is essentially the modern manifesto of the anti-incarceration movement in the United States. It applies the reasoning of anti-death penalty advocates to all forms of crime. It’s truly a remarkable document.

So here are the “five things about deterrence” that the memo highlights and then expands upon.

Number one: “The certainty of being caught is a vastly more powerful deterrent than the punishment.” In other words, according to the DOJ, criminals are primarily worried about whether the cops are going to arrest them — not about how long they’re going to have to stay in prison. The question that apparently never occurred to this DOJ is: If the punishments aren’t severe, then why would the certainty of being caught deter anyone? Why would criminals care if they’re caught, if they know ahead of time that they won’t be punished? The whole reason that being caught is scary is that you will be punished. But if you aren’t punished, then being caught isn’t scary anymore.

We are seeing this play out in cities across the country. Sure, the criminals are caught (sometimes), but it doesn’t matter because they aren’t punished and they’re back on the street a day later, committing more crimes. The argument from the DOJ is like saying that home invaders are deterred by guns, but it doesn’t matter if it’s a Glock or a super soaker. It makes no sense.

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The DOJ’s manifesto doesn’t bother to expound on this point in any way. It just says, “Research shows clearly that the chance of being caught is a vastly more effective deterrent than even draconian punishment.” So there you have it. “Research” shows that punishment doesn’t work. What kind of research? They don’t say, at least not in that paragraph. Buried in the fine print on the page, however, is a citation to an article by a public policy professor named Daniel Nagin at Carnegie Mellon University. This is the primary paper the DOJ relies on, along with a couple of others. Apparently, Nagin has done the research, and he’s realized that criminals don’t really care that much about punishment. They only care about the prospect of being caught.

I looked around to see if Nagin actually thinks this, and if so, what his logic is. I came across this clip from many years ago, which I’m going to play primarily because it’s kind of hilarious. Watch as a local news team breaks the news that, according to Daniel Nagin’s first groundbreaking finding, when you have more police officers, criminals tend to commit less crime. And then the news station interviews a couple of random people who think that checks out. This is one of the best examples of “research” telling us something that’s incredibly obvious, to a comical degree. But buried in this report, if you listen really carefully, is Nagin’s second theory, which the DOJ finds so compelling. Watch:

So the reporter holds up the stack of papers. “Here’s the research,” he says. “It shows that more police means less crime!” Cut to the two local residents and the sheriff who say, “uh, yeah. You think?” Apparently, being a professor at Carnegie Mellon isn’t what it used to be. Random people off the street think your research is incredibly obvious, because it is.

But the key part of that segment for our purposes is what Daniel Nagin says in that clip. He reports that, “There’s little evidence that making punishments even more severe than they already are has an incremental effect.” Right away, that’s a different argument from the one the DOJ is making. The DOJ said flat-out that, “draconian punishments” don’t deter crime. But the argument this Carnegie Mellon professor is advancing in that clip is that, if you make our existing punishments more severe, then they won’t deter crime that much. Those are two completely different arguments.

This little inconsistency confused me enough to look up Nagin’s actual paper — the one the DOJ cites in its manifesto on deterrence. And in that article, you’ll find two main claims.

The first one is the idea he outlines in that video clip, “There is little evidence that increases in the length of already long prison sentences yield general deterrence effects that are sufficiently large to justify their social and economic costs.” In other words, he’s saying that existing prison sentences are a sufficient deterrent, and we don’t need to make them longer.

But afterwards in the paper, Nagin goes on to say pretty much what the DOJ claims. He says, “I have concluded that there is little evidence of a specific deterrent effect arising from the experience of imprisonment compared with the experience of noncustodial sanctions such as probation. .. It is clear that lengthy prison sentences cannot be justified on a deterrence-based, crime prevention basis.”

Those claims don’t follow at all. His starting point is that we don’t need to make prison sentences longer. And somehow, without showing his work, he ends up with a declaration that criminals don’t really care about their punishments, only whether they’re apprehended — as though apprehension without punishment matters to anyone. We might as well just sentence everyone to probation, is what he’s saying.

The technical term for this kind of argument is that it’s garbage. It’s a clearly absurd result, but it’s the basis for the DOJ’s entire argument against deterrence. This is the document that the DOJ cites to justify its policy of releasing as many criminals as possible — or at least, criminals who share the DOJ’s politics. It’s hard to overemphasize how truly bizarre and incredible this is.

But it gets weirder. Citing Nagin’s research, the DOJ goes on to claim that, “Sending an individual convicted of a crime to prison isn’t a very effective way to deter crime.”

Again, that’s a direct quote from a document produced by the DOJ in 2016. “Sending an individual convicted of a crime to prison isn’t a very effective way to deter crime.” They’re saying that because some random Carnegie Mellon professor just wrote it down a few years earlier. Again, they don’t really clarify this point. Here’s the extent of the DOJ’s explanation: “Prisons are good for punishing criminals and keeping them off the street, but prison sentences (particularly long sentences) are unlikely to deter future crime. Prisons actually may have the opposite effect: Inmates learn more effective crime strategies from each other, and time spent in prison may desensitize many to the threat of future imprisonment.”

If this is true, it’s an argument for giving out even longer punishments, not shorter ones. In fact, this is a solid reason to be much more generous in handing out life sentences. If you give a life sentence — and actually make it a life sentence, meaning that the person isn’t released after 25 years or whatever — then the deterrence issue, at least for that individual, is a moot point. He’s gone. He’s off the street for good. But the DOJ doesn’t mention this possibility in the memo. Instead they conclude that we should let people out of jail sooner, after just telling us that jail only makes criminals more dangerous.

The rest of the DOJ document continues along these lines.

The third bullet point in the DOJ’s document says, “Police deter crime by increasing the perception that criminals will be caught and punished.” (This was the earth-shattering revelation that shocked those news reporters). 

Number four: “Increasing the severity of punishment does little to deter crime.”

And number five: “There is no proof that the death penalty deters criminals.”

Those latter two bullet points contradict everything we know about the human condition. Obviously longer, harsh prison sentences deter crime. This is a basic fact of human psychology. People are less likely to do something if the consequences are very bad. That doesn’t mean nobody will do it. It doesn’t mean that everyone will respond to incentives like a rational person. It just means fewer people will do it. It’s impossible for a reasonable person to deny this point because it is again a basic fact of human behavior, well established over the course of thousands of years of human civilization.

That’s why they have no way of disproving it. All they have are random studies done by quack sociologists which are supposed to outweigh the collective experience of all mankind for the past 10 thousand years. And by the way, these random studies contradict the random studies I cited earlier — the ones CBS News reported on back in 2007.

That’s a cue that it’s a good idea to ignore all of these studies, and use common sense. The DOJ is stacking a handful of research papers against the totality of human experience, and expect us to believe the research papers. Which is also how they come up with the ridiculous proposition that the death penalty doesn’t deter crime. Obviously people are less likely to do something if you kill them for doing it. If the death penalty in its current form is less effective as a deterrence than it has been in the past, that’s only because we put so much time in between conviction and punishment that the punishment loses much of its societal impact.


And again, the DOJ’s arguments are all assuming that “deterrence” is somehow the only relevant goal. But long prison sentences have another important goal, known as “incapacitation.” They remove violent criminals from the public, so they can’t hurt anyone again. 

Later on in the document, the DOJ does briefly touch on the goal of incapacitation. Here’s what they say: “Individuals grow out of criminal activity as they age. … A more severe (i.e., lengthy) prison sentence for convicted individuals who are naturally aging out of crime does achieve the goal of punishment and incapacitation. But that incapacitation is a costly way to deter future crimes by aging individuals who already are less likely to commit those crimes by virtue of age.”

This is how the DOJ views criminal justice. They actually say that sending criminals to prison for a long time might be pointless because they’ll grow out of being criminals anyway. This is the type of thinking that is directing the justice system from the very top, and the mental rot goes all the way down from there.

But the DOJ does make one point that makes sense, which is that it’s impossible to say which criminals are likely to reoffend, and which criminals are likely to “age out” of a life of crime. That’s true. Really, it’s impossible to conduct a fully accurate study of deterrence. There’s no way to quantify the number of people who would have committed a crime had the punishments been softer, or the number who did commit one because the punishments were too soft. This would require not only self-reported data (which is notoriously unreliable) but also a person’s speculations about their theoretical mental states in some other possible universe. There’s just no way to compile that into a statistic and call it science.

We ultimately have to fall back on the history of human societies and our own basic common sense intuitions about how human beings operate and what sorts of things incentivize and disincentivize them.

And all of that points back to a simple and straightforward conclusion: if you want less crime, you have one choice. It’s the choice that academics and public health experts and politicians have avoided making for decades now. You have to punish criminals, and you have to punish them severely.

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The Daily Wire   >  Read   >  Why The Criminal Justice System Gave Up On Punishing Criminals