|Chapter 5 Impact at the Time of Sentence: Period of Official Criminalization|
|Written by Patricia Erickson|
|Wednesday, 07 January 1981 00:00|
The 95 cannabis offenders were interviewed after being sentenced. About three-quarters had received final disposition within three months of being charged and all but four within six months. Thus the experience of the arrest and subsequent events was a recent occurrence and well within acceptable limits of retrospective studies.
In an effort to explore the impact of this social policy, both the costs to the offenders in the personal, social, economic, and legal spheres and the benefits with regard to specific deterrent effects will be considered. Our primary concern with respect to costs is with those socially transmitted effects of criminalization, rather than the automatic disqualifications or handicaps bestowed by law upon the recipient of a criminal record.' The operation of legal stigma, even at the early phase of the societal reaction process, forms part of the potential adverse consequences of criminal sanction (Schwartz and Skolnick, 1962).
Empirical testing of these tenets, principally with juvenile rather than adult offenders, has shown limited support for perceived labeling by others (Foster et al., 1972;,1 Jensen, 1972) while findings for self-labeling are mixed. Official processing was found to be related to thinking of oneself as a delinquent by Jensen (1972) and Ageton and Elliot (1974), but studies by Siegal (1975) and Hepburn (1977) showed that involvement in delinquent behavior, whether officially sanctioned or not, strongly affected self-perception. Reviews of labeling have concluded that the impact was a variable product of criminal justice system processing and needed to be related to characteristics of subjects, situations, and sanctions (Hagan, 1977; Thorsell and Klemke, 1972).
To ascertain whether the sample of cannabis offenders perceived their identities as stigmatized, they were asked, "Do you think of yourself as a criminal?" Frequency was indicated by choosing from often, sometimes, or never. The question was also posed with respect to the sample's perception of the likely responses of a variety of significant others.' The sample's response indicated not only that they rejected the criminal label for themselves, but also that they perceived a majority of significant others as rejecting it as well (Table 9)
Table 9 Sense of Criminal Identity as Perceived by Self and Significant Others
Considering first the question of self-labeling, six of the 95 subjects acknowledged sometimes or always thinking of themselves as criminals, and the rest responded firmly in the negative. Without greater variation in sample response, it is not possible to compare the features of the self-labeled "criminals" with those who reject the label. However, some points of interest may be noted. Since only one of the six had been convicted and fined, and the rest were discharged, sentence severity did not contribute to the criminal self-image. Further probing elicited the information that two of the six felt like criminals because of quite large-scale dealing activities, not because of the possession offense. One of these had an outstanding charge for possession for the purpose of trafficking, and the other considered himself lucky to have escaped a trafficking charge on this occasion. The other four subjects, who appeared to label themselves as criminals specifically in relation to the possession charge event,5 were encouraged to expand on their experience. The two heavier users emphasized one part of the process; the two infrequent users stressed the whole process. Two young men (aged 18 and 19), both heavy users of cannabis, singled out treatment by the police: one had been held for several hours in the cells and the other reported being struck "for lying" in the course of the arrest. For a third person in this group (a pregnant woman in her twenties), an occasional user of marijuana, the actions of the police seemed to be rendered particularly important by the presence of her mother and daughter at the arrest. "They [police] didn't show me any respect, they acted like I was a prostitute in front of them" (see Hepburn, 1975). This subject also said she felt "dirty" and "cried for a week" about being fingerprinted, and described going to court as an "embarrassing" experience that made her feel "nervous, sick." The fourth person, who had been caught the first time he tried marijuana, said, "I feel guilty about it .... [this feeling] became stronger at court." (see Appendix C). These latter two cases, who suggest almost classical fulfillment of the degradation ceremony of criminalization, may have been particularly vulnerable as inexperienced users who lacked the support in their family and social networks for "normalizing" their deviance.
Why did the vast majority of offenders not accept the label of criminal? Some explanation for the resistance to the criminal self-label was found in their responses to other questions during the interview. The sample group was asked, in an open-ended question, to describe the sort of activity and person they would associate with "criminal." Most portrayed crimes in the conventional way, as predatory acts committed against victims, often citing such offenses as murder, rape, and robbery (much as do the general public; see Boydell and Grindstaff, 1974). Interestingly, many subjects also went on to elaborate their belief in the widespread use of cannabis: "Lots of people, all ages, with kids, use grass," and, "More people are smoking than people think; I know bank managers and stock brokers who do." These comments suggest the "pluralistic ignorance" about the extent of cannabis use in the larger society also noted by Brown et al. (1974:536). It was suggested in their study of marijuana users that this type of nonconforming behavior fosters the "pluralistic ignorance" that more people endorse their views and behavior than is really so,6 thus fostering normative conflict and change in this area.
Another question posed during the interview provided further evidence of the sample's perception of cannabis offenses as relatively low in intrinsic criminality. Respondents were asked to assess the criminality of a variety of offenses in relation to cannabis possession (Table 10). Out of nine other offenses, six (trafficking in cannabis, possession of heroin, criminal negligence, break and enter, assault, and trafficking in heroin) were judged to be "more criminal" than possession of cannabis by a majority of respondents. Two offenses (illegal abortion and public drunkenness) and the parking infraction were considered either the "same" or "less" criminal by at least twothirds of the cannabis offenders. The sample members were also more inclined to perceive trafficking in cannabis and heroin possession as the "same" as cannabis possession (35% and 30% respectively) than they were break and enter, assault, and heroin trafficking (less than 5%).
In answering the question of whether they thought that significant others in their social circle would attach the stigma of "criminal" if aware of the cannabis charge, considerable variation was found (Table 9). The strongest support for their own rejection of the label was perceived among friends. Only 5% of the subjects indicated that friends might view them as criminals. It is of interest to note that 71% of the group reported having friends criminalized for cannabis offenses, suggesting a network of peer support available for "fighting back" (Rogers and Buffalo, 1974). The older adult world was seen as more likely to respond with a criminal identification, with about 30% of mothers and fathers and 28% of bosses (or teachers in the case of a student) being placed in this category.
The same question was also posed in relation to the criminal justice personnel they had come in contact with in the course of their case (not with respect to "lawyers," "judges," or "police" in general). The police were perceived as most likely to view the respondent as a criminal (56%), followed by judge (35%), and lawyer (12%) (Table 9). Even those who are part of the process of punishing cannabis offenders were seen as divided in their propensity to apply criminal labels.
Table 10. Perceived Criminality of Various Offenses Relative to Cannabis Possession
In review then, the vast majority of the sample (94%) did not apply a "criminal" identification to themselves after their court appearance for cannabis possession. The neutralization of the label appeared to be achieved principally through two strategies -the first was to deny the criminality of the offense in all but law and the second was to cite the widespread use of the drug, especially by "respectable" people.' The marked lack of self-labeling, at least in the direct response of feeling "like a criminal," found in this study seems to be largely due to the nature of the "crime." As Hepburn concluded cogently, "The label must be consistent with the actor's perception of his behavior before it will be accorded legitimacy" (1977:257). Not all degradation ceremonies are successful.8
Also to be considered as a likely contributing factor to the offenders' non-acceptance of the criminal label was their perception of a high degree of peer support and, to a lesser extent, family and community compliance in defining cannabis users as non-criminal. While some anticipation of stigma from others was recorded (similar to findings by Foster et al., 1972), except for police it was perceived by less than one-half of respondents. On the whole, negative labeling by self and others did not result from official criminalization.
The two groups of significant others about whose knowledge the sample expressed the least concern were peers- and partners. When asked who knew about the offense, respondents indicated that the impending court appearances had been shared with friends and partners (when applicable) of most of them. Of those who lived with a spouse or common law partner (17%) at the time of trial, only one was seriously concerned about his mate's reaction and intended to keep the news from her. About 90% had shared the event with several friends. Of those who had told at the most one close friend about the charge (9%), two underlying patterns were associated with this reticence. The older offenders, who had both user and non-user friends but none who had been charged for a similar offense, made such remarks as:
I might lose a bit in some friends' eyes, those who couldn't understand my views.
In a younger and regular-using sub-group of those who had not told their friends, the feeling was more that the incident was trivial and it might appear stupid or "uncool" to be caught for such a thing. One remarked, "People don't broadcast being to court anymore. Two years ago, when it meant you were in trouble you did; not now when you get off. "
It will be recalled that nearly half the sample still lived at home with at least one parent. Distress to parents who learn of the arrest has been suggested as a serious social cost (Le Dain, 1972:293). The subjects were concerned with two levels of parental knowledge one of cannabis use per se and the other of criminalization for the offense. It was reported that more parents knew about the sample members' use of cannabis than knew about the court proceedings. Of subjects who had some contact with a parent, 73% of their mothers and 65% of their fathers knew they had tried cannabis before the charge was laid. In contrast, these respondents reported 42% of mothers and 36% of fathers were aware of the court proceedings.
At one extreme, a few subjects reported a high level of parental sympathy and support for the court appearance, when use was already known and accepted. For example, one father who was present in court with his 20-year-old son remarked, "Isn't that ridiculous? Why should he get a fine for something I did 20 years ago they were called reefers then and cost 25 cents each." At the other extreme were nearly 7% of the cases where the revelation of use and charge occurred simultaneously and was upsetting for all parties, as this illustrates:
The worst part was with my parents. I was going to tell them but they found out right away. Legal Aid sent me a letter that didn't have my name quite right so they opened it. Now they feel I was busted for drugs, that I'm addicted to marijuana. . . . They weren't positive I smoked before this, or didn't want to know.
Those whose parents had not found out about either the use or the court appearance wished to keep it that way. Some described their parents' likely reaction as extreme, as did this respondent, "They'd jump to conclusions about all dope, feel that my life is ruined, and likely throw me out of the house." For such subjects, avoiding the "drug user" label seemed as important as the "criminal" identification. For others who hoped to conceal the offense, the wish to avoid upsetting or hurting their parents, and the belief they could handle the matter themselves, seemed more influential than the expectation of punitive repercussions in the home situation. At the time of the court appearance, sample members who did not live with their parents, or if they did but were not arrested at home, appeared fairly successful in maintaining secrecy about the offense.
Even fewer employers were known to have learned of the court case (27%) than mothers or fathers. As with parents, offenders generally told their employers only when they were quite sure of a sympathetic response or when it was unavoidable. Another problem was the necessity of taking time off work or school to attend court. Work posed the greater problem for the sample since most students were out of school at the time of the interview, though often engaged in summer employment. Respondents were asked how they had accounted for their absence from work that day. Excluding those who had no need to provide an excuse because they were not employed, had the day off, or were working other shifts, the balance of respondents (N=58) were quite versatile in their handling of the situation. About half mentioned court and half did not. Twenty-one percent told the truth to employers about appearing specifically on the cannabis charge. For example, a bank teller showed her summons to the assistant manager in order to get the time off. She said, "He started to tell me to write things down - he didn't trust my memory." Some other reason than cannabis for the need to attend court was given by 14%, usually some kind of traffic offense. The 17% who said that they had to be at court, and left it to the employer to infer the reason, were open to other imputations: "When I told my boss I had to go to court, he asked, 'Why?' and I said, 'I'd rather not say.'He said, 'Rape?"' Those who said they were able to take the day off without providing any explanation (26%) were usually either self-employed or involved in the sort of casual labor that is simply not paid for on days absent. A last group, consisting of 23% of those who would have been at work if not at court, claimed to be sick or to have an appointment. Most of the sample preferred not to tell employers the real reason for their absence, and resorted to a variety of strategies whose impact was uncertain.
Respondents were asked to estimate their financial losses in relation to the cannabis possession offense. Expenses they listed included lawyer's fee, amount of fine, lost pay ($20 per day average), and value of cannabis seized by police. (The latter "expense" represented an expenditure of income to the subjects as well as the cost of replacement for most; however, value was only counted once.) About one-quarter of the sample considered they had no financial loss. Of those who had, half put the figure at $70 or less, and one-fifth at $200 or more. While one-third had retained their own lawyer, the fee was not included if paid by legal aid. The cost of the fine, ranging from $25 to $300, was considered a major expense by those receiving this sentence. Slightly over half the sample had come to court more than once on the charge; of those for whom missed work meant no pay, the losses could and did mount up. Although the amounts of cannabis seized were usually small, they might have been the only expense for those who were not fined and had no lawyer to pay. When asked to assess the seriousness of the financial loss to themselves, a majority, (80%), considered it no more than an inconvenience, while for the balance it required a change of plans or was viewed as a serious loss.
Other economic casualties were also reported in the pretrial period. Five persons lost jobs in a manner traceable directly or indirectly to the offense. In three cases, absenteeism or lateness caused by the arrest or court appearances apparently led to firing. These cases, recorded in the field notes, are as follows:
A 22-year-old man reported that by the time he was released from the stat ion, after the arrest, he was late for his job as a shoe salesman. When he arrived
A 16-year-old man, appearing for the second time on his charge, reported that he lost a job when his boss found out about the first court appearance. He said he had sat in court all that day and not been called. Then the police had served a 'fail to appear" notice on him the night before the second appearance and held him in custody for it. He had a new job as a "machine feeder" that was to start at 8 a. in. that day, and he thought he would have lost It by not showing up.
A woman in her late twenties had appeared several times on the charge, while awaiting a certificate of analysis. She lost a position she had held for a n umber of years with an insurance company fo absenteeism for these appearances. She had not her employers the reason but believes they found out.
In two other cases, the job loss was due to some overlap of the offense with the place of work. The following accounts were provided:
Police checked the subject's parked car for stolen goods at the company lot where the 17-year-old man worked. Their suspect was someone the subject had given a ride to that day. The police found cannabis in his car. He received notice.
After being arrested at his parents' home for one plant, an 18-year-old man moved in with his girlfriend. Soon after, cannabis was found at this apartment while he was at work. This was a factory job he had began one week earlier. He was phoned there and told to return home immediately or he would be arrested at work. "I told the boss the police wanted me at home. He said, "What about?" I said, "A ticket." He said, "Well, don't bother coming back."
These examples are quoted at length to illustrate the difficulties that may arise prior to any finding of guilt and official labeling. An accused who is not very adept at dealing with the situation, and is readily dispensable at the place of work, seems particularly vulnerable.
Table 11 Perceived Consistency by Sentence, Controlling for Trips to Court
Disrespect for the Law
Disrespect - Marijuana prohibition
Disrespect - Criminal justice system
One outcome of the enforcement of cannabis laws that has been postulated is the development of unfavorable or hostile attitudes to police by those they arrest (Le Dain, 1972:292). The subjects were asked at the time of trial to describe how they felt about the police before and after they were charged.10 Sixty-five respondents (68%) said their attitude had not changed and 30 (32%) said it had. Of course, some already had negative attitudes which remained unaltered. Only one of the 30 whose attitude changed reported a more favorable attitude since the arrest. The other 29 indicated a change for the worse.
These negative attitude shifts seemed to be related to two types of police actions displayed in the arrest situation, as described
In contrast, people in general did not become more negative to the police when they appeared to operate in a more disinterested, nor-threatening manner. These findings suggest that unfavorable attitudes to the police do not follow automatically from a cannabis offense, but depend, to some degree, on the manner in which the arrest is conducted." Some disrespect for the police had been the outcome of cannabis arrests in a third of the cases.
The second area of possible disrespect for the criminal justice system is directed at the courts. Since judgments of the fairness of the court system depend in part on the evenness of sentencing practices, it was important to discover how the offenders perceived the consistency of sentences. They were asked if they thought they got the same or a different outcome than was "usual in your type of case," and if different, was their sentence more or less severe. Seven subjects did not express an opinion, Of those who did, 51% who got an absolute discharge and 59% who received the other two alternatives believed it to be the "same" as another person would get. Of those who thought it was different, all of those who received an absolute discharge considered the penalty "less severe." Respondents who were given fines or probation were almost equally likely to have regarded their sentence as "more severe" than usual (27% and 31% respectively).
That their sentences should be perceived as consistent by a majority of respondents in all three sentence outcome groups is an interesting comment on the fairness attributed to the court system. This is so particularly in view of the discussion in Chapter 3 which indicated actual wide disparities in sentence, apparently related primarily to which judge heard the case rather than to other legal characteristics. However, about half the subjects went to court only once and were thus exposed to only one judge whose approach was generally quite uniform (see Chapter 3, Table 8). Those who appeared more than once were more likely to have perceived inconsistencies (see Table 11).
Subjects who observed the variation in sentences sometimes reacted quite strongly, as this quote from a 19-year-old man, who heard the judge "convicting and fining everyone" on his first appearance, and who had received a discharge from another judge on his second appearance, illustrates:
It's the judge or his mood that makes the difference; one day hes ruining your life, the next day he's letting you off. It's ridiculous.
The awarding of an absolute discharge was not necessarily seen to be the most fair decision. A 33-year-old man (who was convicted and fined) remarked:
You shouldn't get an absolute discharge because if there is a law and a penalty this doesn't mean anything. If you're going to give this discharge it means you shouldn't have a law at all. If I'd been given this, I'd laugh.
An 18-year-old woman, after receiving an absolute discharge, commented:
Another person had this perception of the judge.
He treats people like criminals and looks down on them and I don't respect him as a person.
The examples cited show that the granting of legitimacy to the court system is more than a matter of unbiased sentencing. While a majority of all respondents (52%) perceived their sentences as consistent at the time, albeit inaccurately, their volunteered remarks showed feelings of disrespect which also stemmed from the judge's courtroom actions, observed differences in sentencing without apparent logic, and the inherent contradictions of the discharge provision. Considering that 16% of the total did believe that they had been sentenced more severely than was usual, some disrespect for the court of this nature, too, had been generated by their initial experience there.
Disrespect - Law in society
The respondents were asked whether they agreed or disagreed on a four-point scale with three statements:
The sample's response showed very high respect for the law in general. The large majority agreed with the first and third statements (95% and 93% respectively) and 86% disagreed with the second statement. Response to these statements was quite independent of their disagreement that, "Marijuana use should be against the law." Thus these findings suggest that strong expressions of respect for the law in general can co-exist with disrespect for a specific prohibition.
Another indicator of respect or normative conformity with the codified law is the extent to which conventional penalties are deemed appropriate for various offenses. Those disputing the legitimacy of the law might be expected to deny the right of society to punish those committing other types of crimes. Surveys of "noncriminals" asked to assign penalties for a range of crimes show a fairly
These findings suggest that despite criminalization, cannabis offenders display the ability to differentiate the relative seriousness of other offenses, and do not refute the legitimacy of the court system in punishing predatory criminals and distributors of "hard" drugs. Their chief quarrel with the law is over the prohibition against cannabis.
Loss of Rights and Privileges
Table 12 Penalties Assigned to Various Offenses
*Two missing cases (N=93)
The Offender's Subjective Perspective
What was the worst thing for you about the whole experience of having to come to court on this charge?
Their responses were categorized in two ways. The first was according to the segment of the criminalization process the response referred to, i.e. arrest, court, etc. The second was according to the content as it reflected an instrumental or affective orientation, The offender's reaction was considered "instrumental" if the worst thing was a tangible deprivation or a possible liability, and "affective" if the respondent described the worst thing in the context of personal feelings about it." The grouped responses are shown in Table 13.
For one-third of the sample, the worst part occurred prior to the actual court appearance, and was much more frequently described in an affective rather than instrumental way. The arrest as the worst phase was usually described in terms of police treatment: "Getting roughed up seared the hell out of me"; or in terms of the inconvenience of the time spent at the station and the interference with other plans. While not all the sample members were taken to police headquarters for fingerprints and photographs, two who were designated this the most unpleasant part; for example, "The thought of them having my prins and photograph - it makes me feel guilty." For the greatest number of this group, the worst part was the waiting itself before the court appearance. The uncertainty of what the outcome would be and the fear that parents or employees would find out were the features emphasized here.
Those who selected aspects of the court as most negative (41%) usually were referring to either the compulsory attendance or the sentence itself. Their responses were more often couched in instrumental than affective terms. Going to court was described as a "hassle" because of missing work, losing pay, getting fired, coming back more than once, and waiting to be called. For others, the "tension of standing up in front of the judge" and "having to admit I was wrong by pleading guilty" were the objectionable parts of the court experience. When the sentence was perceived as the worst thing, it was usually a heavy fine or lengthy period of probation that was considered a hardship. Some who regarded their sentence as inappropriate reacted quite strongly:
I'm insulted, to get probation [12 months] for such a petty offense.
I expected an honorable [sic] discharge .... It's not fair, he didn't even ask me if I had anything to say ... they don't let you explain [recipient of $ 100 fine for four joints].
For a third group of offenders (15%), the worst part was viewed as yet to come, in the sense that having a criminal record and the police knowledge of it might create difficulties in the future. Those who had bonded positions or who were seeking work were very likely to consider a record the worst part, and were sometimes not clear just what the implication of their discharge was in this regard: "A record - that's what 1 was worried about.... I still don't really know if 1 have one or not." That the police might respond differently to someone with a record was also raised: "They might be rougher knowing about the record." And finally, one group (11%) could not identify the worst thing
This section has reported what the offenders regarded personally as the most punitive part of the criminalization experience by the time they were sentenced. Although the costs of criminalization in a policy sense are often discussed in relation to the post-court period (i.e. effects of a criminal record) the majority of offenders perceived the phases of arrest and waiting for trial, and the strictures necessitated by the court appearance, to be the "worst" part, Only 15% singled out the aftermath when their record might count against them. Perhaps if the sentences awarded had been more severe (i.e. more subjects had been convicted and fined) this aspect would have been selected by more recipients. Also, the question may have been interpreted by some to mean "worst up to this point."
As has been pointed out during this discussion of personal, social, economic, and legal costs, some are incurred prior to sentence and are thus independent of the final court disposition. In this sense, "the process is the punishment" (Feeley, 1980). The period of official criminalization from arrest to sentence ranged from a minor inconvenience for some respondents to a major disruption in the working and social lives of others. Such results contribute to the total costs of criminalization.
Deterrence is the principal object of punishment. Punishment is meant to persuade others that it does not pay to engage in the prohibited behavior, and it is also meant to teach a similar lesson to the offender.
Criminologists refer to the prevention of criminal activities by others as general deterrence and to the dissuasion of offenders from further law-breaking as specific deterrence (Andenaes, 1974). Since this study is of cannabis users who experienced the maximum official response of criminal labeling, the data address directly the issue of specific deterrence. Statements about general deterrence would require a population of users and non-users. For policy purposes, however, the two types of deterrence are functionally interrelated. The application of the criminal process to particular users is the means by which the threat is transmitted and made credible to the community at large. Cannabis control policy to date has rested on the
The earliest deterrence studies examined the fluctuations in officially recorded crime rates in relation to various indices of certainty and severity of punishment (e.g. rates of clearance by arrest, i.e. charges laid, for crimes reported to the police; maximum penalties available in law; proportion of offenders imprisoned). Research on the effects of the objective properties of punishment has been reviewed elsewhere and will not be discussed at length here (see Tittle and Logan, 1973; Gibbs, 1975; Andenaes, 1975). The weight of the evidence produced, while not conclusive, suggests that certainty of sanction is consistently a more important factor than severity, though murder remains an anomalous crime. Tittle and Rowe (1974) concluded that a certain threshold of arrest certainty must be reached (30% of reported crimes in their study) before an effect on crime rates can be demonstrated.
Research which has been restricted to deliberate predatory crimes against person or property (known as the "index" crimes in the U.S.) may not be generalizable to victimless crimes such as drug use. The emphasis of the effects of punishment on crimes does not deny a reciprocal relationship. As Andenaes has noted, crime may also have an impact on punishment; a sharp increase in crime rates (as has happened with cannabis offenses) may result in various adjustments to avoid overburdening *the criminal justice machinery, thus creating "an impression that leniency in dealing with offenders is responsible for high crime rates" (1975: 348). A more valid assessment of general deterrence with respect to cannabis use is provided by taking surveys of self-reported cannabis use before and after legal changes have occurred.
Such a natural "experiment" has been made possible by the reduction of penalties for marijuana possession in several states in
The relative unimportance of the penalty structure in deterring the use of cannabis may be related to the very low actual risk of punishment. The Le Dain Commission estimated that less than 1% of those who had used the drug in a given year were convicted (1973:54). The proportion was about the same in 1978, based on approximately 30,000 convictions in a Canadian user base of 3,000,000 (Blackwell et al., 1979). The ratio for use incidents rather than offenders, a more valid indicator of objective certainty of punishment, would be even lower. Of course, these studies of the objective properties of punishment tell us nothing about how penalties and the risk of detection are perceived by the would-be offender. Andenaes (1974) and others have argued that these are decisive factors in creating the deterrent effect, and it is to this "marginal" group of potential offenders that the criminal law is directed (Webb, 1980).
An emergent theme in the next phase of deterrence research was to examine the effects of the subjective properties of legal punishments. Erickson, Gibbs, and Jensen argued that "perceptual variables must be taken as paramount in testing the deterrence doctrine" (1977: 305). Studies which included measures of perceived certainty and severity of punishment tended to support the greater influence of risk of detection as compared to penalty, though severity was found to have some relevance when certainty was rated high (e.g. Claster, 1967; Jensen, 1969; Waldo and Chiricos, 1972; Teevan, 1976; Erickson et al., 1977; Erickson and Gibbs, 1979). In the sample of college students surveyed by Waldo and Chiricos (1972), self-reported marijuana use was unrelated to perceptions of severity of punishment but was related to perceived certainty of punishment, i.e. use was more likely among those who perceived a low likelihood of arrest. A replication of this research among Canadian high school students (Teevan, 1976) produced similar results, and both studies
The deterrence perspective has been criticized for excessive reliance on legal controls to the exclusion of other social pressures which may induce or inhibit conformity with the law (Silberman, 1976; Anderson et al., 1977; Meier and Johnson, 1977; Webb, 1980). If neglected empirically, the importance of informal controls on behavior received theoretical recognition by Andenaes in 1966: "The motivating influences of the penal law may become more or less neutralized by group norms working in the opposite direction" (cited in Anderson et al., 1977:104). Fear of punishment may not be the only reason for law-abiding behavior. These studies shared the assumption that deterrence is only one possible answer to the question, "Why don't they do it?" (Meier and Johnson, 1977). And, perceptions of legal threats were combined with measures of various extra-legal influences in attempts to formulate a broader social control perspective.
Silberman (1976) devised a complex, multivariate model of deterrence and tested it with data from a sample of university students. His study was, in part, an attempt to replicate and expand the work of Waldo and Chiricos (1972). Silberman related perceptions of certainty and severity of punishment, moral commitment (i.e. whether an offense was always wrong or not), and peer involvement (whether a friend had been arrested) to self-reported criminal activity (which included a number of offenses besides marijuana use). A general pattern of deterrence was described in which moral commitment acted as a crucial intervening variable between perceived arrest certainty and lawbreaking activities. Unlike more conventional crimes, no negative relationship was found between perceived certainty of punishment and the involvement in offenses such as marijuana use and underage drinking which were considered virtually immune from legal regulation, The explanation put forward is that a very low actual probability of arrest, reflected in student perceptions, can diminish the legitimacy of the given legal norm which in turn reduce the deterrent effect of the arrest threat. The discrepancy between these results and those of Waldo and Chiricos (1972) are attributed to the erosion of the threat of arrest over time and the greater acceptability of marijuana use in Silberman's sample of students. Thus, for offenses such as marijuana use, "the absence of legitimacy of the legal prohibition . . . and the corresponding positive social support for engaging in them, make the threat of punishment an ineffective deterrent" (Silberman, 1976:455).
Anderson, Chiricos, and Waldo (1977) re-analyzed the data presented by Waldo and Chiricos (1972) in order to examine the combined deterrent effects of formal and informal sanctions on selfreported marijuana use among university students. Informal sanctions, measured by perceived attitudes of family and friends to marijuana use and by friends' involvement in this activity, were found to have a substantial, independent impact on marijuana use that was slightly greater than that of perceived certainty of punishment. However, the cumulative effect of informal and formal sanctions was stronger than that of either alone. These findings (based on data collected in 1970) must also be considered in light of Silberman's contention that the passage of time has reduced the fear of detection to the point of irrelevance. Of course, both studies were of university students who are not a group at high risk of arrest among marijuana users generally (Johnson et al., 1977). Arrest probability as perceived by potential users may have some effect on other groups and in other jurisdictions (e.g. Teevan, 1976).
A more representative sample was utilized by Meier and Johnson (1977) to test a complex model of the deterrence of marijuana use. Data were drawn from a U.S. national survey in 1971 of adults 18 and over, in a jurisdiction with severe penalties for cannabis possession (maximum life imprisonment at the time). In a multivariate analysis that incorporated both legal and extra-legal factors, Meier and Johnson found that legal threat was "a comparatively impotent source of compliance" compared to the extra-legal factors of age, fear of physical consequences, and beliefs that marijuana use is immoral (1977:302). The number of friends who used marijuana was the best single predictor of use. Their analysis is marred somewhat by the adoption of measures of perceived certainty and severity of punishment that are of questionable validity since they do not relate the perception of threat to self or "someone like you" (e.g. Silberman, 1976). However, the importance of various personal, social, and attitudinal factors which influence conformity with legal norms governing marijuana use provides further illustration of the need for a broader perspective on general deterrence.
In summary, studies relevant to the prevention of cannabis use in the population-at-large have been reviewed and found to offer little support for the operation of general deterrence. Rates of use in American states which have reduced penalties did not change more substantially than in states which had not. Low actual and perceived probability of arrest, combined with widespread use and acceptability of use, seem to have largely inactivated the threat of punishment, particularly among young people. It was suggested that the effectiveness of the law over time in preventing marijuana use has been progressively diminished. Factors other than legal threat - such as the attitude that the use of cannabis is morally wrong, or disapproved of by peers, or potentially harmful to health - were shown to be important in the decision to refrain from use. In the next section of this chapter, the specific deterrent findings, pertaining to those who have actually experienced arrest and punishment, will be presented.
The findings of this study run counter to the hypothesis that the more severe and certain the punishment, the greater the deterrent effect. Not only was a more severe type of sanction associated, though not significantly, with the highest likelihood of ongoing use, but also a greater perceived risk of rearrest was displayed by those most determined to continue use. The most important finding was that intention to continue use was strongly related to past frequency of use (i.e. in the year before trial). While at least 85% of the regular user groups were "quite likely" or "very likely" to persist, 64% of the irregular users -were "not very likely" or "not likely at all" to do so (Erickson, 1976:228). The absence of support for deterrence hypotheses was repeated when they were examined while controlling for level of use (see Tables 14 and 15). Arrest at the early experimental stage of drug use could be an effective deterrent, as shown by a few cases in the sample. However, 60% had first tried the drug while still juveniles and the average time between initiation of use and sanctioning was five years. Thus, realistically, the deterrent benefits of criminal justice intervention are shown to be negligible for nearly all of those processed. 16
Erickson (1976) did not include an examination of perceived severity of sentence nor of offenders' expectations regarding sentence. Such factors may possibly add to our understanding of the lack of deterrent effects.
It will be recalled that the sentence awarded, or actual severity, included the three categories of absolute discharge, conditional discharge, and conviction with fine. In law, the conditional discharge requiring a probationary period imposes a greater penalty than the absolute discharge. The fine, requiring the registering of a conviction, is similarly more severe than either form of discharge.
However, this "official" weighting of severity may not coincide with the subjective perception of those sentenced and it is the latter aspect that is most likely to affect behavior. Sample members were given a range of seven penalties, all possible for simple possession, and asked to order them from most to least severe (see Table 16). The one-month jail sentence and the heavy fine ($250) were ranked as most and next most severe. The absolute discharge and conditional discharge (three months probation) were ranked as least and next least severe. What is of particular interest is that the smaller fine ($50) was placed between the two categories of conditional discharge for 12 months and for three months. In fact, the light fine and short probation are ranked more closely together than any other two items. Offenders apparently do not accept, or may not be aware of, the official advantage of a conditional discharge over a conviction and fine. Given a choice, offenders on the average would consider the smaller fine less severe than the longer probationary period for themselves.
A second set of findings relevant to deterrence involves the sentences the sample members anticipated from their court appearances. A more severe sentence than expected might enhance deterrent effects, while a less severe one might dilute the impact. A summary of expected outcome in relation to actual sentence is shown in Table 17. Overall, the sample members were not accurate forecasters of their sentences. While 27 of the 95 respondents were correct as to sentence type, only 14 of these accurately anticipated details such as amount of fine or length of probation. Five respondents did riot know what to expect. The largest source of error seemed to be the fortuitous absolute discharge. While 33 subjects were expecting a more severe sentence and received an absolute discharge, only five of the 19 who expected discharge, got one.17
Since the actual consequences were milder than the anticipated ones for nearly half the sample, it was thought worthwhile to create a new variable, a combination of actual and expected sentence severity, and relate it to perceived certainty of rearrest and intention to continue use. Perhaps the finding of a positive relationship between perceived certainty of rearrest and continued use could be understood as an expression of "it can't be any worse a second time than I was already worried about." That is, the sample may have become desensitized to the threat. However, little support for this interpretation was found, as those who did "worse" than expected were just as likely to be undeterred as those who did the "same" or "better," regardless of past use or perceived likelihood of rearrest (Tables 18 and 19).
Since most offenders were not aware, prior to their arrest, that relatively lenient sentencing practices prevailed, they could not be considered more careless or intense in their use of cannabis for this reason. Rather they expected a harsher response than they usually received. These findings seem to underscore the general finding in the literature of the relative unimportance of sentence severity in achieving deterrent effects. Well entrenched and long-term cannabis use appears quite resistent to the potential punishments imposed by the criminal justice system.
|Last Updated on Tuesday, 24 May 2011 15:07|