There are two types of deterrence – specific and general.  Specific deterrence focuses on the risk of recidivism by the individual defendant.  General deterrence is focused on preventing others from engaging in similar misconduct.

Deterrence depends on three basic factors: certainty; severity and swiftness of punishment.  The certainty of punishment is a significant factor for obvious reasons – if there is a little chance that a criminal’s misconduct will be detected, there is a greater likelihood an individual will commit the crime.  Society should invest significant resources to detect and investigate criminal activities.  If the investigation and prosecution drags on for years, even if there is a certainty of being detected, the criminal may discount the impact of the ultimate punishment.

The severity of the punishment is a significant factor in the cost-benefit weighing of criminal activity.  The punishment imposed reflects the harm of the conduct and a community’s disapproval of the conduct.  Another way to say this is the punishment should be proportionate to the crime itself and the harm it caused to others.

In the federal system, judges are required to consider deterrence and retribution when sentencing a defendant.  The Federal Sentencing Guidelines note the need for a criminal sentence to be “just punishment” while affording “adequate deterrence to the criminal conduct.”  When it comes to white-collar sentencing of corporations and individuals, judges place significant weight on the importance of deterrence.

The impact of such deterrence, however, may be neutralized when white-collar offenders rationalize their criminal conduct.  A businessperson may describe their behavior in terms that make such conduct acceptable and protecting their reputation as a law-abiding citizen or member of a community.  From my vantage point, however, such explanations are usually post hoc rationalizations of known criminal behavior used to justify or excuse criminal conduct.  Because complex white-collar crimes usually focus on the actor’s intent, offenders often engage in denial by providing justifications for their actions.  In many cases, the white-collar criminal blames overzealous prosecutors for his or her conviction rather than their own conscious choices and behaviors.

Whether deterrence has a significant impact on reducing white-collar crime is a fascinating question that requires further investigation and research.  Even setting side this question, the need for deterrence is an important factor for judges to consider.  Stiff sentences for white-collar offenders is consistent with society’s desire to prevent white-collar crime and harm to its victims.  Further, the emphasis on deterrence restricts judicial sentencing at ranges that significant deviate from guideline recommended sentencing ranges.

Judges should consider whether a criminal sentence will send a message about white-collar criminal conduct and that such sentence reflects the harm to the victims and to society.  Retribution is an important factor as well, especially when considering the impact of criminal conduct on victims. Similarly, judges should consider the need to disable a defendant by incarceration as a means to prevent the offender from engaging in future misconduct while incarcerated.

When comparing white-collar criminals to other classes of criminals, it is important for society to understand that criminal conduct should be avoided notwithstanding any positive contributions a specific offender may have made to his or her family, community or society.  In many cases, such considerations are only masks for protecting the wealthy and upper class criminal offenders who often understand completely the difference between legal and illegal conduct.  Such principles promote the overall fairness of our criminal justice system by reducing sentencing disparities among criminal defendants.