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Does criminal law in America deter potential offenders from committing crimes? As public policy is formulated, many U.S. legislators, media commentators, and policy analysts argue that having a criminal justice system that imposes liability and serious punishment for violations deters: that the threat of “hard time” in prison - or worse - will give certain individuals pause before they break the law.

But in a new paper, “Does Criminal Law Deter? A Social Science Investigation,” (forthcoming in the Oxford Journal of Legal Studies) by Paul H. Robinson, professor of law at the University of Pennsylvania Law School, and John M. Darley, professor of psychology and public affairs at Princeton University’s Woodrow Wilson School, the authors argue that given available behavioral science data, in most cases criminal law does not foster deterrence.

Robinson and Darley acknowledge that the wider allocation of police resources or the use of enforcement methods that dramatically increase the capture rate of offenders can, in fact, deter crimes. But the authors find that attempts to increase the deterrent effect by increasing the penalties assigned by criminal law – the substantive rules governing the distribution of criminal liability and punishment – does not succeed, contrary to what law- and policymakers have assumed for decades.

A policy brief summarizing the study is available (PDF format).