Does criminal law deter?
Given available behavioral science data, the short answer is: generally, no. Having a criminal justice system that imposes liability and punishment for violations deters.1 Allocation of police resources or the use of enforcement methods that dramatically increase the capture rate can deter. But criminal law the substantive rules governing the distribution of criminal liability and punishment does not materially effect deterrence, we will argue, contrary to what law- and policy-makers have assumed for decades. Our claim is not that criminal law formulation can never influence behavior but rather that the conditions under which it can do so are not typical. By contrast, criminal law makers and adjudicators formulate and apply criminal law rules on the assumption that they nearly always influence conduct. And it is that working assumption that we find so disturbing and so dangerous. Our skepticism of criminal law’s deterrent effect is derived in large part from a behavioral science resear
