Now, before we proceed to our second argument, it is necessary to give an overview of the deterrence theory of punishment which has gained a lot of popularity since the 19th century. Simply put, the deterrence theory aims to justify the imposition of punishment as it intends to deter individuals from committing a crime. Both the words ‘deter’ and ‘terror’, share their etymological roots from the Latin word ‘terrere’ which means “to frighten”. Thus, the aim is to reduce future crime rates by creating terror or psychological coercion of sanctions amongst individuals and to increase the cost of crime by making crime less rewarding for individuals. Its rationale can be simplified as two-fold – to create individual deterrence by deterring offenders from re-offending and to create general deterrence to prevent potential offenders from committing a crime.
Even by enforcing the exemplary value of the punishment for the crime of paper leak, the current law will struggle to create a deterrent effect on offenders. Drawing on insights from Arthur Koestler’s work Reflections on Hanging, which deals with a searing indictment of capital punishment, we find that deterrence does not necessarily frighten that race of criminals who live off crime. Koestler explained this by giving a real-time example that at a time when pick-pockets were executed in England, other pick-pockets exercised their talents in the same crowd that had gathered to witness the execution of their colleagues.
Similar is the case of offenders involved in paper leaks, where some states have leveled allegations that a network of repeat offenders are involved in committing such crimes, often bordering on organised crime. In such a situation, it is not difficult to presume that the power of intimidation will only reach the soft individuals who are not drawn towards committing such crime, and would not affect the hardened ones. Their passion to attain fortune becomes so strong that they can confront and overpower the fear of punishment.
In such cases, the value of the punishment fails to outweigh the value of the expected profit from the offence, and the offenders choose to commit the offence irrespective of being aware of the known consequences if they are caught. Their lifestyle and motivations are so deeply rooted that the threat of punishment becomes secondary to the potential rewards they seek. In essence, for offenders entrenched in organised paper leak activities, the perceived value of potential profits tends to outweigh the deterrent value of punishment, and the theory of deterrence becomes ineffective.
However, this does not discount punishment’s potential role as a deterrent altogether. Effective deterrence occurs when the overall cost of doing a crime would be perceived as too high for an individual to consider it cost-effective. To increase the cost of crime, it requires three key components: certainty of being caught, celerity in administering punishment, and severity of the consequences. When these components, along with the communication of risk of arrest and punishment are communicated to potential offenders, they understand that the risks and costs associated with committing a crime far outweigh any potential gains, thereby deterring them from committing paper leaks and similar crimes.
Source: Barandbench
