...Today, the conversation about deterrence has become far more contested, because of the social and fiscal costs of mass incarceration. In October, the Justice Department announced it would free 6,000 nonviolent drug offenders who were behind bars, often because of the mandatory minimum sentences that Congress was eager to pass in Gramm’s day. Freeing prisoners has for decades been seen as politically perilous, but now there is increasing bipartisan agreement that lengthy sentences are used too frequently. Perhaps the country has hit a limit for ratcheting up punishment in the name of deterrence.
As it turns out, deterrence was not originally intended as an argument for harsh punishment. ‘‘Deter’’ comes from the Latin for ‘‘to frighten or discourage from.’’ ‘‘Deterrent’’ first appeared in English in 1829, in a book about punishment by the British philosopher Jeremy Bentham, the father of utilitarianism. He believed that a law’s success could be measured by whether ‘‘the desired effect is produced by the employment of the least possible suffering.” Punishment should be swift, certain and severe enough to achieve deterrence — but not more severe than necessary.