DETERRENCE

Assuming (whcih is not always clear from this discussion) that the object of a judicial policy is to reduce crime by deterring people from breaking the law, there are two main tactics, detection and punishment: "You will be caught," and "If caught you will be punished." There is a dangerous tendency to focus on the second as if it were the only one that mattered.

In fact, if we think about it, everyone knows that detection works: most people do not break the law if they know they will probably be caught, even if the sanction is only a slap on the wrist. That, after all, is why we all want more police on the streets, because people do not commit crimes with a policeman watching. And likewise, while few of us like cameras, it is a well established fact that where they are installed, crime goes down.

But there is a tendecy to imagine that punishment can substitute for detection - that if you don't catch many lawbreakers, you can deter them nonetheless by punishing more severely the ones you catch. Historically, this has never worked, for several reasons. Firstly, the most hideous danger isn't scary if you feel the chances of it happening are remote (otherwise nobody would ever drive a car.) Secondly, if only a few lawbreakers are punished but those ones are punished brutally, people will feel the system is unfair on both counts; and those who are punished will feel that they have been not unlucky but unjustly singled out. (They may be right, since a poor detection rate usually goes along with picking off the easy cases and ignoring the hard ones, as when drug squads focus on poor blacks rather than rich white coke-sniffers.) People who suspect a neighbour may have done something wrong will think twice about informing on him if the penalty seems absurdly harsh. Juries, too, will be loath to convict someone when they know he will be brutally punished while many equally guilty go free. And - I haven't exhausted the list, just the obvious points - ramping up the level of punishment blurs the distinction between petty and serious crime. If you drop the roof on someone for theft, how much worse can you punish a murderer?

Better detection does not draw the headlines that "getting tough on crime" does, but it actually works, where "getting tough" rarely does.