Further Insights:Punitive Damages
Punitive damages serve as a civil parallel to criminal deterrence. The idea is that behavior that causes civil liability, and is “reprehensible” in nature can incur damage awards. The punitive award is both a punishment for the behavior, and deterrence (both specific and general) against future action. In 1989, the United States Supreme Court, in Browning-Ferris Industries, Inc. v. Kelco, held that the 8th Amendment’s prohibition against cruel punishment is not applicable in civil actions when punitive damages are awarded. Arguments were raised that the deterrent value can be counterproductive, as companies are reluctant to bring new products to the market for fear of suit. Starting in 1991, the Court has stepped back, allowing states to create limits on punitive damages. By 1996, in BMW, Inc. v. Gore, the Court rejected a punitive damage award as too large. They articulated a rationale that a company must be able to calculate in advance the damages for which they might be liable (Hall, 2005).
A question that springs from punitive damages deals with the fairness of treating wealthy defendants differently from others who lack equivalent resources. Hylton jokingly suggests that a six figure judgment against a multi- billionaire would have the same deterrence factor as a parking ticket. He argues that there shouldn’t be a class of defendants who can view punitive damages as “parking tickets,” or an annoying cost of doing business. Others counter that as long as the full social cost of the egregious behavior is covered, than society has recouped its loss. Another approach is to ensure that if the defendant commits a reprehensible act to obtain a profit, or avoid a cost, as long as the damages negates whatever the act was attempting to gain, again, society has been compensated, regardless of the defendant’s wealth (Hylton, 2008).
Conclusion
While punishment can serve as retribution, or to ensure that the wrong doer is no longer at large in society to cause harm again, a central purpose of punishment has long been deterrence. Deterrence operates at two levels: specific deterrence affects the individual who caused the harm, and now faces the consequences; general deterrence works on society at large, providing “spectators” to the punishment with a reminder of the price tag of wrongdoing. Looking at specific categories of criminal behavior, such as domestic violence or white collar crimes demonstrates just how complicated it can be to determine if punishment serves to deter crime, or to merely make it more difficult for the offender to ever enter civil society again, once he or she has been
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labeled as a criminal. Both juvenile justice and the death penalty provoke particularly heated debates about the impact of deterrence.
Terms & Concepts
Browning-Ferris Industries, Inc. v. Kelco: An 1989 Supreme Court decision that held that the 8th amendment prohibition against cruel and unusual behavior is not applicable to punitive damage awards.
Criminogenic Effect: The opposite impact of deterrence, punishment instead leads to increased criminal activity in the future.
General Deterrence: This type of deterrence works on society at large, and is a reaction to the observation that criminal behavior carries a risk too high to assume.
Labeling: “Experiences in the criminal justice system leads to increased criminal behavior because of diminished opportunities for success in …law-abiding activities, or because of a process of self-identification… in which the individual who is ‘labeled’ adopt the …behavior patterns that are characteristic of the label” (Schneider & Ervin, 1990, p. 587).
Punishment Avoidance: When a crime is committed, and no punishment follows, future criminal behavior is encouraged, both for the individual and the population at large.
Punitive Damages: “Are awarded in civil actions to punish defendants for, and deter them from engaging in reprehensible behavior” (Hall, 2005, p. 805).
Recidivism: This measures the likelihood that an offender will repeat illicit behavior.
Roper v. Simmons: A 2005 Supreme Court decision that juveniles were no longer eligible for the death penalty.
Specific Deterrence: Focuses on the individual. The purpose of punishment is to discourage the perpetrator from future criminal behavior by encouraging the understanding of the consequences.
Subjective Utility Theory: Individuals are self-interested, utility maximizers.
Bibliography
Apel, R. (2013). Sanctions, Perceptions, and Crime: Implications for Criminal Deterrence. Journal Of Quantitative Criminology, 29, 67-101. Retrieved October 28, 2013 from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=85385886
Bhati, A., & Piquero, A. (2007). Estimating the impact of incarceration on subsequent offending trajectories: Deterrent, criminogenic, or null effect? Journal of Criminal Law & Criminology, 98, 207-253. Retrieved September 23, 2008, from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=32432685&site=ehost-live ..F.-Benard, S. (2013). Reputation systems, aggression, and deterrence in social interaction. Social Science Research, 42, 230–45. Retrieved October 25, 2013 from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=83314994
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Flynn, E. (2008). Dismantling the felony-murder rule: Juvenile deterrence and retribution post-Roper v. Simmons. University of Pennsylvania Law Review, 156, 1049-1076. Retrieved September 23, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=32016040&site=ehost-live
Hall, K. (2005). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press.
Hylton, K. (2008). A theory of wealth and punitive damages. Widener Law Journal, 17, 927-948. Retrieved September 23, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=32871292&site=ehost-live
Kateb, G. (2007). Punishment and the spirit of Democracy. Social Research, 74, pp. 269-306. Retrieved September 23, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=26378593&site=ehost-live
Lucken, K. (2013). You Say Regulation, I Say Punishment: The Semantics and Attributes of Punitive Activity. Critical Criminology, 21, 193–210. Retrieved October 25, 2013 from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=87090678
Schneider, A., & Ervin, L. (1990). Specific deterrence, rational choice, and decision heuristics: Applications in juvenile justice. Social Science Quarterly (University of Texas Press), 71, 585-601. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=9103182607&site=ehost-live
Schwarzschild, M. (2002). Retribution, deterrence, and the death penalty: A response to Hugo Bedau. Criminal Justice Ethics, 21, 9. Retrieved September 25, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=9156897&site=ehost-live
Sherman, L., & Berk, R. (1984). The specific deterrent effects of arrest for domestic assault. American Sociological Review, 49, 261-272. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=14800146&site=ehost-live
Sitren, A., & Applegate, B. (2007). Testing the deterrent effects of personal and vicarious experience with punishment and punishment avoidance. Deviant Behavior, 28, 29-55. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=23093516&site=ehost-live
Stolzenberg, L., & D’Alessio, S. (2004). Capital punishment, execution publicity and murder in Houston, Texas. Journal of Criminal Law & Criminology, 94, 351-380. Retrieved September 25, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=12788283&site=ehost-live
Weisburd, D., Waring, E., & Chayet, E. (1995). Specific deterrence in a sample of offenders convicted of white- collar crimes. Criminology, 33, 587-607. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=9601100085&site=ehost-live
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Suggested Reading
Braga A, Weisburd D. The Effects of Focused Deterrence Strategies on Crime: A Systematic Review and Meta-Analysis of the Empirical Evidence. Journal Of Research In Crime & Delinquency [serial online]. August 2012;49:323-58. Retrieved October 28, 2013 from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=78031090
Luna, E. (2007). Traces of a libertarian theory of punishment. Marquette Law Review, 91, 263-294. Retrieved September 23, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=29974485&site=ehost-live
McGuire, J. (2002). Criminal sanctions versus psychologically-based interventions with offenders: A comparative empirical analysis. Psychology, Crime & Law, 8, 183. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=9019040&site=ehost-live
Nagin, D. S. (2013). Deterrence in the Twenty-First Century. Crime & Justice, 42, 199-263. Retrieved October 28, 2013 from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx? direct=true&db=sih&AN=90256797
Sherman, L., Smith, D., Schmidt, J., & Rogan, D. (1992). Crime, punishment, and stake in conformity: Legal and informal control of domestic violence. American Sociological Review, 57, 680-690. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=9301281113&site=ehost-live
~~~~~~~~ Essay by Cheryl Bourassa, M.A.
Cheryl Bourassa earned a Master’s Degree in early American History in 1991 from the University of New Hampshire. She worked as a certified Social Studies teacher in the Concord, NH public schools for twenty years, before leaving to pursue a writing and research career. She is involved in refugee and political activities in her home town of Concord, NH.
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