Criminal Justice System
Another factor to consider when trying understanding why specific deterrence does not seem to be effective is the role that interaction with the criminal justice system itself might play. After experiencing arrest, prosecution, conviction and incarceration, the offender’s opportunities in the field of white collar work might well be quite restricted. Without prestige and status, the cost of recidivism might not seem as high. Thus, the specific deterrence of prison time instead takes on a labeling function instead (Weisburd, 1995).
In 2005, the United States Supreme Court ruled in Roper v. Simmons that juveniles were no longer eligible for the death penalty. The Court referenced international standards and compacts that prohibit the execution of juveniles, but it upheld life in prison without the possibility of parole (LWOP) even though that sentence was equally condemned by the same international compacts (Flynn, 2008). This exception is significant. In 2004, 2225 juveniles in state or federal prisons were serving LWOP sentences. Of these, 354 inmates committed their crime before their sixteenth birthday. Flynn writes that the full impact of Roper on the juvenile system has not yet been felt. Many states still treat serious juvenile offenders as adults; Roper’s reasoning raises questions about this. Although some of the most violent juveniles might need a level of increased incapacitation, it is now up to debate whether “unreformable ‘superpredator’ children really exist” (Flynn, 2008, p. 1052).
In June 2012 the United States Supreme Court ruled that mandatory juvenile life without parole is cruel and unusual punishment. This affected laws in nearly thirty states and affected life terms handed to those under the age of eighteen. The 2012 Miller v. Alabama case found that life sentences without the possibility of parole are unconstitutional for juvenile offenders.
Roper built upon the Court’s earlier decision in Thompson v. Oklahoma (1988), a case that overturned the death penalty for a fifteen year old boy. Then the Court stressed that the realities of youth worked to withhold privileges and responsibilities that might “explain why their irresponsible conduct is not as morally reprehensible as that of an adult” (Flynn, 2008, p. 1054). Additionally, they held that their youth made them unable to be deterred by even the harshest punishment since their age made them “fail to engage in ‘the kind of cost-benefit analysis that attaches any weight to the possibility of execution'” (Flynn, 2008, p. 1055). Flynn sees this argument as confirming that adolescents lack maturity, and:
are less likely to foresee the consequences of their actions and process the potential effects of their actions on others. Because they fail to engage in such thought processes, children are more reckless than adults and are also less likely to be deterred by punishment (Flynn, 2008, p. 1055).
7/24/22, 1:29 PM @ Walden University Library
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Whether or not the death penalty provides a general deterrent effect, even in the adult population, is a matter of great controversy. Bedau argues that the society should only tolerate the least invasive means of controlling an undesirable behavior. Since the lesser punishment of life without parole is equally effective at ensuring that the behavior will not be repeated, no higher form of punishment can be permitted. With the option of life without parole, there is no deterrent value in the higher punishment. Schwarzschild takes issue with that argument, suggesting that all of the evidence on the deterrent value of the death penalty is inconclusive, since no controlled study can be undertaken (2002). Stolzenber and D’Alessio have also reviewed the extensive literature and conclude that there is no irrefutable study that demonstrates for or against the deterrent value of capital punishment (2004). Schwarzschild acknowledges that the state could never argue at trial for the execution of an individual to ensure a general deterrence in society at large, although this is the basis of much of the public support for the death penalty (2002).