Grits posted about how a Texas law making the theft of copper wire a felony, regardless of the value of the wire stolen, didn’t solve the problem.  Having never defended a copper wire case, this doesn’t have any personal impact on me.  But his point, that creating harsher sentences under the assumption that hard time will deter the crime, often misses the mark.

There is a certain beauty to sentencing law.  By increasing the severity of the offense (say, misdemeanor to felony, low-grade felony to higher-grade felony) and the resultant punishment, our government can prove that it is dealing with crime.  It makes for good headlines.  It’s easily digestible.  It conforms to the public’s common sense notions about how to stop crime. 

The only problem is that it doesn’t necessarily work.  The operative presumption is that by increasing penalty for a crime, it will decrease the commission of the crime.  Why?  Because the idea of general deterrence tells us so.  People will not commit a crime in order to avoid the penalty for the crime.  Like I said, simple and straightforward.

The problem is that this concept may have no applicability to non-financial crimes, where there is a cost-benefit analysis to be done by the potential perp in advance of the crime.  In my experience, not all potential criminals complete a business plan before making their decision to commit a crime.

Another problem is that the significance of the penalty is relative to the likelihood of getting caught.  If potential criminals don’t believe that they are going to get nabbed for the crime, then the penalty doesn’t affect the equation, or at least not as much.

But this presumes that potential criminals think about the penalty at all before engaging in criminal conduct.  Based upon my highly scientific study (in other words, my personal experience), it’s all according to what type of crime is involved, how intelligent the person is and their inclination to think at all.

Offenses driven by passion or mindlessness are immune from any general deterrence.  It just doesn’t enter into the equation. 

Offenders who are particularly dumb don’t think about much of anything.  This cuts a far broader swathe than people who ponder the issues of penalty and criminality realize.  Since they don’t hang out with criminals enough (other than lobbyists), they engage in rank speculation about the subject with little if any connection to reality. 

As a friend of mine, a criminal defense lawyer who ended up elected to the Legislature told me, they don’t get it at all.  They legislate in some fantasy land and then wonder why it never seems to work the way they thought it would.  Their solution?  Do the same thing all over again, but make it even harsher.  It may not work, but they will be heroes for doing so.

For reasons that I have never quite understood, ordinary people maintain a belief that criminals approach their work the same way that professors do.  They study up, become fully familiar with the law, the punishments, the legal bars and police tactics.  They “know” stuff.

Well, I’m here to tell you, they don’t.  They don’t know stuff.  They are dumb.  They hear nonsense talk on the street from other dopes and believe it, spreading misunderstand through the community like syphilis.  They show up on my doorstep in a shocking state of dumbness.  Their primary source of information tends to be old ladies sitting on crates on street corners who answer all questions.

While tweaking penalties may serve to help the politicians, and provide a perpetual source of discussion for people like me, the presumption that it serves a general deterrence purpose is, for the most part, mental masturbation.  The people we seek to deter don’t pay attention, don’t get it and don’t care.