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2017 U. Ill. L. Rev. 1333 (2017)
Threats and Criminal Deterrence in Several Dimensions

handle is hein.journals/unilllr2017 and id is 1366 raw text is: 



                                                       Saul Levmore*
                                                         Ariel Porat**

       This Article's claim is that deterrence in criminal law is com-
  posed  of four oft-competing goals that ought to be taken into account
  when  calibrating sanctions. Consider an offender, such as an armed
  robber  or kidnapper, who  threatens to commit a yet more  serious
  crime unless the victim surrenders. The first goal, or dimension, of de-
  terrence is to deter the threat, or crime in general, and this suggests a
  high sanction for the armed  robbery or other threatening crime. A
  second  goal is to deter escalation, in this case the execution of the
  threat once issued. This goal normally suggests a large gap between
  the sanctions for lesser and greater crimes, in order to discourage es-
  calation. Given a natural, or practical, ceiling to criminal penalties,
  the suggested gap often implies a relatively low sanction for the lesser
  crime, or threat, and some sacrifice of direct deterrence.
       Two  other goals, or dimensions, of deterrence have been unrec-
  ognized by academic  commentators and  legislatures. By extending the
  analysis to include behavior by victims, it becomes apparent that law
  ought to make  the offender's threat incredible to victims. If the threat
  can be weakened,  victims will be less inclined to submit, and then of-
  fenders will have less reason to threaten in the first place. This third
  dimension  suggests a large gap between the sanctions for the lesser
  (threat) and greater (execution) crimes; if the gap is small, victims will
  recognize that the offender has little to lose from continuing on and
  executing his threat, and these victims will submit and make the crim-
  inal's threat profitable, thereby encouraging yet more criminal activi-
       A fourth, equally novel, dimension of deterrence is the ability of
  law to make  incredible the implicit promise by a threatener not to es-
  calate if the victim submits. When this implicit promise is incredible,
  victims will again tend not to submit to the threat, and offenders will,

    *  Saul Levmore is the William B. Graham Distinguished Service Professor, University of Chi-
cago Law School.
   **  Ariel Porat is the Alain Poher Professor of Law, Tel Aviv University, and the Fischel-Neil
Distinguished Visiting Professor, University of Chicago Law School.


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