It seems to me that the incentives to commit crime rest mainly in the failure of our legal system to fully utilize creative options for risk/reward considerations, consequences, and punishment.

Those who break the law may be dumb in some sense, but they do calculate the risks and the consequences.  Self-preservation is a really powerful motivator.  You and I may see imprisonment as a sufficient deterrent, but career criminals and street thugs don’t.  It’s more like a trip to a harsh reality summer camp, but at least you’re with guys who understand your language: force, intimidation, and fear.  To most in the criminal world, it is the cost of doing business, a break from the outside world with “three hots and a cot,” where you go periodically to get a hardcore makeover and harden yourself for the next phase of your existence.

For example, I had a client who was arrested for a burglary he certainly did not commit.  He did have the pills in his possession that the burglars had sold him, but he was not involved in the heist.  He was a career criminal, minor-league for the most part, and really not too bright.  The reason I know he did not commit that burglary is that the job was highly sophisticated, requiring significant knowledge of electronics, disarming alarms, etc.  The guy just plain didn’t have the mental horsepower to pull that off.

Though we were quite confident that we could prevail in a trial, our client took a slightly shortened sentence plea offer because he was afraid of a jury and having his past examined.  When I questioned him, he said to me, “I can do three to five standing on my head.”  So much for the perceived element of deterrent.

The crux of the problem in terms of normal, law-abiding citizens making the rules and determining the punishments is the fact that those people’s living conditions, their “creature comforts,” their station in life is significantly better than most.  Accordingly, their sense of the severity of methods of punishment and the conditions of incarceration are completely misaligned with the reality of what is tolerable to criminals.  In other words, conditions of imprisonment and the reality of actually “doing time,” to the mind of normal, law-abiding people, are intolerable and out of the question.  When compared to the normal life they live, the notion of enduring prison conditions is overwhelmingly sufficient to deter them.  Because these same people, insulated from that side of society that lives in poverty, crime, drug addiction, mental illness, godlessness, violence, and completely dysfunctional families, do not fathom the complete disconnect one group has from the other.

Prison life just isn’t that different from what they are used to.  Accordingly, what would certainly deter the lawmaker is simply a pit stop for the criminal.

Those criminals who enter that arena of civil offensiveness that threatens innocent people require consequences that more accurately fit the nature of crimes that show careless disregard for the safety and the lives of others.  Those kinds of criminals need a special consideration when it comes to deterrents.  They need to feel that same fear of death that their victims did.

In matters of violent crime, when the use of deadly force is a justification for thwarting that attack, should the attacker be arrested and brought to justice, adjudicated and awaiting sentencing, the victim(s) should be consulted about their desires for punishment — beyond the concept of a victims impact statement, but indeed provided the opportunity to determine life or death as a consequence.

As an example, an attacker brandishes what appears to be a gun during a carjacking.  Fearing for her life, the victim would be justified in shooting and killing that criminal.  But in our example, our victim does not do this, the car is taken, and later the perpetrator is apprehended.  At the time of sentencing, the victim should be afforded the opportunity to decide if this criminal lives or dies.  After all, our victim had every right to use deadly force during the crime.  Why not give her that opportunity now?

Basically, any crime where deadly force would have been justifiable but not used should be revisited as an option after trial, decided by the victim.

In closing, a few thoughts.  I believe that in more than 50% of cases where this was an option, victims would choose sparing the criminals their lives.  I believe that the emotional pressure of having that power of life and death would overwhelm the conscience of most people.  I recognize that my theory here is completely anecdotal. 

Second, the knowledge that a life-or-death possibility exists will certainly serve as a deterrent.  It’s one thing to go to prison — summer camp for the hood — but it is quite another story to play roulette with one’s life.  Whether or not you’re a law-abiding citizen or a hardened criminal, we all have the will to live.  That serves as the ultimate incentive, no matter who you are.

Read more of Bob’s writing at bobkingsley.com.

Image via Pxfuel.