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 completely sufficient deterrent, but to career criminals and street thugs it isn’t seen as such.  It’s more like a trip to a harsh reality summer camp, but at least you’re with guys who understand your language; that of force, intimidation and fear.  To most in the criminal world, it is the cost of doing business, a break from the outside world with “3-hots and a cot” where you go periodically to get a hard-core make-over and harden yourself for the next phase of your existence.

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

While we were quite confident 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 about this decision he said to me, “I can do 3-to-5 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 in the lives of those people, their living conditions, their “creature comforts”, their station in life is significantly better than most.  Accordingly, their sense of the severity for methods of punishment and the conditions of incarceration are completely mis-aligned 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 is 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 and not a lot different from his life on the outside.

While our criminal justice system routinely handles all levels of cases, those that 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 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 car-jacking.  Fearing for her life, the victim would be justified in shooting and killing that criminal during the commission of that attempt.  But in our example, our victim does not do this, the car is taken and later the perpetrator 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?

Another example.  A burglar enters a home and at gun point, steals money from the owners.  Again, if they were armed and conditions permitted, those homeowners would be legally justified in shooting and killing those burglars.  Instead they initially get away but later are apprehended, arrested, tried and convicted.  Because that homeowner would have been totally justified in shooting the robber, he should now be given the opportunity to decide life or death as punishment.

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 and 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 ones life, whether or not you’re a law-abiding citizen or a hardened criminal, we all have that will to live and that serves as the ultimate incentive no matter who you are.