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Report No. 262

(ii) Assumptions of Deterrence

4.3.15 For deterrence to work, it is necessary that certain pre-requisites be met. If any one of these prerequisites do not exist, or if any of them are weakened, then the overall idea of deterrence fails. These prerequisites can be broadly articulated as follows:289

(a) That potential offenders know which offences merit the death penalty

(b) That potential offenders conduct an analysis of the costs and benefits before or while committing the crime and weigh the death penalty as a serious and important cost

(c) That potential offenders view it a probable consequence that they will be subjected to the death penalty if they commit the crime

(d) That potential offenders are risk-averse and not risk-seeking

(e) That potential offenders give more weight to the costs than the benefits, and choose to not perform the act.

289 Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of Legal Studies 173, 175 (2004).

4.3.16 If all the above mentioned prerequisites are met, then it is assumed that the potential offender will be deterred from offending.

4.3.17 However, experts noticed two major fallacies in these assumption.- Knowledge Fallacies and Rationality Fallacies.290

290 Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of Legal Studies 173 (2004).

a. Knowledge Fallacies

4.3.18 Knowledge fallacies refer to the idea that offenders do not know the penalties applicable to the crimes that they plan on committing. Hence, they do not feel deterred by a severe penalty. However, deterrence assumes that every individual knows the legal penalties applicable to him/her in case she commits a crime.

There is ample evidence to show that both the general public and potential offenders have little or no knowledge of the penalties which they can be subjected to.291 The idea of the knowledge fallacy is aptly summed up by King, when he says: As put aptly by King, "About-to-be lawbreakers don't look up penalties in the law books; they plan, if at all on how to avoid being caught."292

291 David Anderson, The Deterrence Hypothesis and Picking Pockets at the Pick-Pockets Hanging, Amer. Law & Econ. Rev. 295 (2002).

292 David Anderson, The Deterrence Hypothesis and Picking Pockets at the Pick-Pockets Hanging, Amer. Law & Econ. Rev. 295, 306 (2002).

b. Rationality Fallacies

4.3.19 A major assumption of deterrence theory is that potential offenders are rational decision makers. However, a large number of crimes are committed in a fit of rage or anger, or when the offender is clinically depressed, or are motivated out of strong emotions such as revenge or paranoia.293 In circumstances such as these, deterrence is unlikely to operate since the actor is not likely to give due weight, or even a cursory consideration to what penalties might be imposed on him/her subsequently; the focus being on the emotion driving his/her state of mind.294

293 Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of Legal Studies 173, 174 (2004).

294 Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of Legal Studies 173, 174 (2004).

4.3.20 The discussion above does not imply that deterrence is a myth and the criminal justice system could do away with all punishments entirely, without impacting deterrence. Indeed, as has been expressed by scholars, the fact that there exists a criminal justice system which punishes criminal conduct is by itself a deterrent.295 Consequently, it is not necessary that punishments by themselves be harsh or excessive. Theorists argue that the assumption in criminal law that the harsher the punishment, the less likely it is to be committed is not true.296

295 Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of Legal Studies 173 (2004).

296 Paul Robinson and John Darley, Does Criminal Law Deter, 24 Oxford Journal of Legal Studies 173, 174 (2004).



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