The Criminal Calculus

By Chief Joel F. Shults, Ed.D

The head of the New York State Assembly is a good example of today’s progressive crime philosophy as it progresses in the wrong direction. Carl Heastie is Speaker and is described by commentator Steve Pomper in a recent NPA article as rejecting the fundamental idea that laws can change behavior. “Heastie, whose position as head of the Assembly is especially powerful, doubled down on his remarks Tuesday, telling reporters in Albany, ‘I simply just said I do not believe that increasing penalties deters crime, and I’d love somebody to give me an example as to when that happened.’”

Heastie’s challenge was to prove a common sense principle that has been at the core of criminal justice policy since the early 1800s. It was  England’s Jeremy Bentham who articulated the Utilitarian Theory.  Simply stated, he held that people are rational actors when deciding on their behavior by what he labeled the hedonistic calculus. Humans engage in behavior that enhances pleasure and reduces pain. Is it worth risking years in prison for the possible gain of a few thousand dollars from a bank robbery? Obviously, most people decide not to rob banks.

Of course, there are plenty of reasons why more people don’t rob banks, but for people whose personal ethics wouldn’t automatically perish the thought, those who might consider the treasure don’t take the risk of getting caught or even getting shot.

The study of victimology intuitively tells us that some people are more vulnerable to crime than others because they are easier targets and therefore increase the chance of their perpetrator being identified, caught, and punished. Any parent, any school teacher, and any coach will tell you that unpleasant consequences work in regulating behavior. Even a reward-only system where bad behavior is ignored and good behavior is rewarded depends on the value of the reward to the individual. In other words, the pain/pleasure calculus is central to decision-making.

Bentham, of course, expanded on his thesis saying that the consequences must be swift, certain, and severe in proportion to the offense. Those with sympathies for offenders must recognize Bentham’s progressive philosophy about punishment for criminals. He advocated against the widespread use of the death penalty, torture, and different penalties for the poor than for the rich. His swift, certain, and severe formula was conditioned on a presumption of innocence, due process, and proportionality. These principles are seen in our Constitution.

The swiftness of punishment requires that, with appropriate regard for the pace of the judicial process, the sentence occurs reasonably close enough to the offense that the offender makes the cause-effect connection. When we see offenders released without safeguards prior to a trial on a violent offense, such as no bail release, we often see new crimes committed before the original crime has been prosecuted. If we trace the real criminal history of persons sentenced for a crime, we would see in most cases a pattern of police discretion, victim discretion, prosecutorial discretion, and judicial discretion that has allowed years of predatory behavior to go without the deterrence of swift accountability.

Certainty of punishment is also a casualty of the legal requirements for trial and the standard of proof required for a verdict. Bentham would agree with the core value of our justice system that incarcerating innocents must be avoided even at the cost of releasing the guilty, but uncertainty due to poor prosecutions and overburdened systems is ultimately a correctable flaw.

As for severity, one needs only to look at the wave of legislation over the past decade to redefine former felonies and misdemeanors, legalize and decriminalize substance abuse behavior, restrict police from basic operations, and broaden the excuses of trauma and mental illness for criminal behavior. Many legislators, like Speaker Heastie, think that punishment itself is wrong and ineffective, advocating for more mental health services. No one wants those with mental conditions that limit their quality of life to go untreated, but if politicians continue to believe that the criminal mind can change through compassion and persuasion alone, they haven’t been a crime victim yet.

This article originally appeared at the National Police Association and was reprinted with permission. 

Source: www.lawofficer.com