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Deterrence Theory.

Bourassa, Cheryl

Salem Press Encyclopedia, 2021. 7p.

Article

Deterrence (Military strategy)

A prime purpose of punishment has long been to deter future illicit behavior. Deterrence works on two levels. Specific deterrence occurs when an individual is punished for wrongdoing, and learns the price of misbehavior. General deterrence affects the population at large who observes the fact that misbehavior leads to punishment. Another possible result of punishment that achieves the opposite effect is labeling, whereby the wrongdoer's life is irreparably damaged by the experience of punishment. Not all individuals or populations respond to deterrence in the same way. Domestic violence offenders, white collar criminals, juvenile delinquents and capital murderers all present unique ways to consider the validity of the deterrent effect.

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Research Starters

Deterrence Theory

A prime purpose of punishment has long been to deter future illicit behavior. Deterrence works on two levels. Specific deterrence occurs when an individual is punished for wrongdoing, and learns the price of misbehavior. General deterrence affects the population at large who observes the fact that misbehavior leads to punishment. Another possible result of punishment that achieves the opposite effect is labeling, whereby the wrongdoer's life is irreparably damaged by the experience of punishment. Not all individuals or populations respond to deterrence in the same way. Domestic violence offenders, white collar criminals, juvenile delinquents and capital murderers all present unique ways to consider the validity of the deterrent effect.

Keywords Browning-Ferris Industries; Inc. v. Kelco; Criminogenic Effect; General Deterrence; Labeling; Punishment Avoidance; Punitive Damages; Recidivism; Roper v. Simmons; Specific Deterrence; Subjective Utility Theory

Deviance & Social Control > Deterrence Theory

Overview

Punishment is not inflicted by a rational man for the sake of the crime that has been committed—after all one cannot undo what is past—but for the sake of the future, to prevent either the same man, or by the spectacle of his punishment, someone else, from doing wrong again. —Plato, Protagoras (in Stolzenberg & D'Alessio, 2004, p. 351)

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It has long been a source of speculation: just what effect does punishment have on an individual's behavior? As far back as the end of the 19th century, Durkheim posited that the "pain of punishment" would deter offenders from repeating their behavior, especially when the "punishment is swift, certain and severe" (Sherman & Berk, 1984, p. 261). More recent theorists take the opposite tack: punishment serves to make recidivism more likely, as all aspects of the offender's life are altered, and legal avenues for obtaining employment are shut. Sherman and Berk wisely speculate that there is no one effect of punishment; responses vary by personality, but also by the type of offense. They argue that white collar criminals, juveniles, drug dealers and violent offenders all present very different profiles.

In "Punishment and the Spirit of Democracy," Kateb argues that the justifications for state inflicted pain— whether corporal or not, he sees all punishment as pain—deserves far more serious consideration. The arrest and punishment of criminals has long been considered a core function of the state. He finds this troublesome in a constitutional democracy; no longer should mere sovereignty be an adequate justification for punishment. He believes there should be a reluctance to inflict the pain of punishment in a democracy, with the principle justification being that it can serve as deterrence. It is not that wrongdoing deserves to be answered with pain, but that the pain serves to deter (Kateb, 2007).

Subjective Utility Theory

Economists have long used the subjective utility theory, which assumes that individuals work toward their own self-interests, and attempt to maximize opportunities. Other social scientists have seen the usefulness of this theory for disciplines beyond economics. It can be applied to the study of deterrence:

[I]ndividuals assess the net utility of engaging in a prohibited behavior by weighing the expected gain against the expected punishment, with the latter weighted by the certainty of being caught and discounted by time to receipt of punishment (Schneider & Ervin, 1990, p. 586).

The public at large has "amazing faith" in the idea that criminal behavior will be curtailed if only the law spells out certain and severe consequences (Schneider & Ervin, 1990, p. 586). Schneider and Ervin argue that empirical evidence does not uphold this "faith" as criminals' behavior seems to operate outside what should be their own self-interests.

Types of Deterrence

Generally, deterrence is understood to operate in two distinct ways. General deterrence works on the population at large; the punishment of one wrongdoer serves as an example to all of society about the cost of misbehavior. Specific deterrence is aimed at the individual; once the law has been violated, and the consequence realized, that individual should have a new and enhanced understanding of the personal cost of illegal behavior. In 1993, Stafford and Warr brought these two strands together, combining and redefining them:

Specific deterrence—directly experiencing punishment and punishment avoidance

General deterrence—experiencing punishment and punishment avoidance indirectly when others are punished (cited in Sitren & Applegate, 2007, p. 31).

In this way, they move beyond the notion that distinct populations experience one or the other form of deterrence; rather, everyone is encapsulated in both types of deterrence. Further, they suggest that there has

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been insufficient focus on punishment avoidance behaviors, suggesting this mindset might do more "to encourage crime than punishment does to discourage criminal behavior" (Sitren & Applegate, 2007, p. 31); as individuals watch others commit crimes and escape punishment, the Durkheim notion of "certain, swift and severe" consequences diminishes.

Applications

When considering the purpose of punishment, it is critical to understand what factors lead into criminal behavior. A school of criminologists believes that some portion of the population has a "constant and unchanging criminal propensity." Thus those who have committed crimes at one point in their lives are more likely than non-offenders to repeat the criminal behavior. They have a "population heterogeneity perspective," recognizing that antisocial behavior will manifest early in life, and the pattern will continue to repeat (Bhati & Piquero, 2007, p. 213). If this view is accurate, punishment should be used only as retribution and incapacitation, but not as a deterrent, since the individual has a 'propensity' toward crime. Nagin and Patermoster suggest that there is also a factor of contagion; once the offense has occurred, the offender's life circumstances take such a turn for the worse that future crime becomes more likely. Bhati and Piquero consider the evidence on criminal propensity to be quite persuasive, but see room for the contagion model as well. Nagin and Paternoster argue for additional research on influence incarceration plays on the relationship between past and future crime (Bhati & Piquere, 2007).

Incarceration

Incarceration has been the central strategy in the United States for crime reduction since 1980. In 1980, just fewer than 2 million people were in the criminal justice system—probation, incarcerated, or paroled. By 2004, the number exceeded 7 million; this equaled 2.3% of the population. The theory behind incarceration is that it "takes a slice out of an individual career" (Bhati & Piquero, 2007, p. 208). This high level of incarceration leads to one of three possible outcomes: a criminogenic effect, in which subsequent crime activity increases; a deterrent effect, leading to a decrease in future criminal activity or a null effect. Bhati and Piquero argue that it is critical to understand the impact of various corrections programs to develop strategies "that minimize any criminogenic harm and maximize any deterrent benefits that result from it" (2007, pg. 209). They suggest that the impact of incarceration in the aggregate has received far more study than the impact on the individual.

The "classic perspective" of crime holds that "swift, certain and severe punishment" will serve to dissuade individuals from crime; once the individual errs and is punished, the memory of the sanction will be an effective deterrent. Research on the specific deterrent effect of punishment on "subsequent criminal activity is not conclusive, though [it] tends to suggest that the certainty of punishment exhibits a small but significant deterrent effect" (Bhati & Piquero, 2007, p. 211). An alternative point of view suggests that instead of punishment serving as a deterrent, it instead leads to "labeling," which in turn leads to ongoing criminal behavior. The offender becomes labeled as a delinquent or criminal; this label is internalized, and makes it more difficult for the individual to opt for more acceptable pathways. Bhati and Piquero suggests that like the research on deterrence, the research on labeling is less than conclusive, although there does seem to be an "indirect labeling effect" (2007, p. 211).

Laub and Sampson completed a longitudinal study on 500 Boston area delinquents, looking at the impact incarceration had on job stability; they found a lack of job stability had a positive correlation with subsequent criminal activity. A key theme that emerged from the interviews with these men was that most found the entire

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system corrupt and disinterested in helping them find a new pathway. Prison was a place to "toughen up," serving as no deterrence at all. For some, there may even have been a criminogenic effect, for they spent their time in jail without job training or any other services that may have lead to future employment (Bhati & Piquero, 2007).

Domestic violence offenders are a group that offers a unique chance to study the dispute between the specific deterrence and labeling understandings of the impact of punishment. By the early 1980s, feminists were pushing police departments across the country to move beyond merely separating violent partners and to use their power to arrest to stop what they clearly saw was criminal behavior. A Police Foundation study in Minnesota showed that in 85% of spousal homicides, the police had been involved at least once in the past two years; often they have intervened five or more times in these families (1976). However, the data was not complete enough to determine if making more arrests would have reduced the homicide rate.

At this time, in Minneapolis, police had three options when confronting a domestic violence suspect. The officers and their colleagues often urged separation, creating short term peace. The training officers generally recommended a form of counseling, trying to get both parties to get to the underlying cause of the "dispute," implying that at some level, both parties were at fault. Women's groups urged protection and law enforcement to deter future violence. An experiment was conducted. As police responded to misdemeanor domestic disputes, they were instructed to implement one of the three options outlined above. Victims were then followed for six months, undergoing extensive interviews with female officers, designed to elicit information about any subsequent violence. Police records for the household were also tracked. The study's authors found many flaws in the execution. Randomness was not always maintained; officers occasionally manipulated the situation to obtain the outcome they saw as most desirable. This was potentially significant since it tended to remove "bad guys" out of the mediation group and into the arrest pool; thus results on deterrence might be less than fully valid. Still, they felt that they had a pool of 314 untainted cases to consider (Sherman & Berk, 1995).

Of the 314 cases in the Minnesota domestic violence study, 59% had a prior arrest rate, and an 80% prior domestic violence call, so the perpetrators were not strangers to the criminal world. A failure in this experiment was considered a fresh call to the police. Of the 314 cases, the group with the lowest recidivism rate was that of the men who were arrested (19%); mediation and advice resulted in the highest rate at 37%. Sherman and Berk took into account the fact that arrests could lead to incarceration; men in jail aren't apt to be re-arrested for domestic assault. They found that arrests seldom lead to significant jail time. Even when the couple was reunited within hours, in no instances within this study did the violence return in the next 24 hours. It seemed to be the arrest and possibility of incarceration that was enough to serve as a specific deterrence (Sherman & Berk, 1995). They do acknowledge however that the arrest might have been seen as undesirable by the victim (loss of a day's wages, for example) and thus a subsequent call to the police might have been less likely for this group.

White collar criminals have never received as much scrutiny as their "street" counterparts, largely, Weisburd, et al. argues that because they are seen as one time operators, they see an opportunity, take it, and are not likely to repeat the behavior. However, an investigation of a substantial number of white collar criminals found that almost 40% of the sample had a prior arrest record. They contend that because white collar criminals have more to lose than most street criminals, they make for an excellent case study on the assumptions of specific deterrence theory (1995).

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In a study of 742 convicted white collar criminals, Weisburd, et al. looked at cases from 1976 to 1978, and compared the effect of imprisonment and non-prison sanctions on recidivism over a ten and a half year period. Specific deterrence theory holds that to be effective, punishment should discourage the criminal from future illegal activity by ensuring that he or she knows the consequences of the action. The focus is on the individual. As these individuals were followed, those that received the more drastic penalty (prison time) were no less likely than those with non-prison sentences to repeat their criminal activity (Weisburd, et al., 1995). Prior to this study, most of the focus has been on the role that general deterrence played, and frequently, the target was corporate rather than individual actors. General deterrence theory suggests that those in white collar professions, often with a high stake in society, would be susceptible to the influences of being aware of the consequences of misbehavior.

Criminal Justice System

Another factor to consider when trying understanding why specific deterrence does not seem to be effective is the role that interaction with the criminal justice system itself might play. After experiencing arrest, prosecution, conviction and incarceration, the offender's opportunities in the field of white collar work might well be quite restricted. Without prestige and status, the cost of recidivism might not seem as high. Thus, the specific deterrence of prison time instead takes on a labeling function instead (Weisburd, 1995).

In 2005, the United States Supreme Court ruled in Roper v. Simmons that juveniles were no longer eligible for the death penalty. The Court referenced international standards and compacts that prohibit the execution of juveniles, but it upheld life in prison without the possibility of parole (LWOP) even though that sentence was equally condemned by the same international compacts (Flynn, 2008). This exception is significant. In 2004, 2225 juveniles in state or federal prisons were serving LWOP sentences. Of these, 354 inmates committed their crime before their sixteenth birthday. Flynn writes that the full impact of Roper on the juvenile system has not yet been felt. Many states still treat serious juvenile offenders as adults; Roper's reasoning raises questions about this. Although some of the most violent juveniles might need a level of increased incapacitation, it is now up to debate whether "unreformable 'superpredator' children really exist" (Flynn, 2008, p. 1052).

In June 2012 the United States Supreme Court ruled that mandatory juvenile life without parole is cruel and unusual punishment. This affected laws in nearly thirty states and affected life terms handed to those under the age of eighteen. The 2012 Miller v. Alabama case found that life sentences without the possibility of parole are unconstitutional for juvenile offenders.

Roper built upon the Court's earlier decision in Thompson v. Oklahoma (1988), a case that overturned the death penalty for a fifteen year old boy. Then the Court stressed that the realities of youth worked to withhold privileges and responsibilities that might "explain why their irresponsible conduct is not as morally reprehensible as that of an adult" (Flynn, 2008, p. 1054). Additionally, they held that their youth made them unable to be deterred by even the harshest punishment since their age made them "fail to engage in 'the kind of cost-benefit analysis that attaches any weight to the possibility of execution'" (Flynn, 2008, p. 1055). Flynn sees this argument as confirming that adolescents lack maturity, and:

are less likely to foresee the consequences of their actions and process the potential effects of their actions on others. Because they fail to engage in such thought processes, children are more reckless than adults and are also less likely to be deterred by punishment (Flynn, 2008, p. 1055).

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Whether or not the death penalty provides a general deterrent effect, even in the adult population, is a matter of great controversy. Bedau argues that the society should only tolerate the least invasive means of controlling an undesirable behavior. Since the lesser punishment of life without parole is equally effective at ensuring that the behavior will not be repeated, no higher form of punishment can be permitted. With the option of life without parole, there is no deterrent value in the higher punishment. Schwarzschild takes issue with that argument, suggesting that all of the evidence on the deterrent value of the death penalty is inconclusive, since no controlled study can be undertaken (2002). Stolzenber and D'Alessio have also reviewed the extensive literature and conclude that there is no irrefutable study that demonstrates for or against the deterrent value of capital punishment (2004). Schwarzschild acknowledges that the state could never argue at trial for the execution of an individual to ensure a general deterrence in society at large, although this is the basis of much of the public support for the death penalty (2002).

Further Insights

Punitive Damages

Punitive damages serve as a civil parallel to criminal deterrence. The idea is that behavior that causes civil liability, and is "reprehensible" in nature can incur damage awards. The punitive award is both a punishment for the behavior, and deterrence (both specific and general) against future action. In 1989, the United States Supreme Court, in Browning-Ferris Industries, Inc. v. Kelco, held that the 8th Amendment's prohibition against cruel punishment is not applicable in civil actions when punitive damages are awarded. Arguments were raised that the deterrent value can be counterproductive, as companies are reluctant to bring new products to the market for fear of suit. Starting in 1991, the Court has stepped back, allowing states to create limits on punitive damages. By 1996, in BMW, Inc. v. Gore, the Court rejected a punitive damage award as too large. They articulated a rationale that a company must be able to calculate in advance the damages for which they might be liable (Hall, 2005).

A question that springs from punitive damages deals with the fairness of treating wealthy defendants differently from others who lack equivalent resources. Hylton jokingly suggests that a six figure judgment against a multi- billionaire would have the same deterrence factor as a parking ticket. He argues that there shouldn't be a class of defendants who can view punitive damages as "parking tickets," or an annoying cost of doing business. Others counter that as long as the full social cost of the egregious behavior is covered, than society has recouped its loss. Another approach is to ensure that if the defendant commits a reprehensible act to obtain a profit, or avoid a cost, as long as the damages negates whatever the act was attempting to gain, again, society has been compensated, regardless of the defendant's wealth (Hylton, 2008).

Conclusion

While punishment can serve as retribution, or to ensure that the wrong doer is no longer at large in society to cause harm again, a central purpose of punishment has long been deterrence. Deterrence operates at two levels: specific deterrence affects the individual who caused the harm, and now faces the consequences; general deterrence works on society at large, providing "spectators" to the punishment with a reminder of the price tag of wrongdoing. Looking at specific categories of criminal behavior, such as domestic violence or white collar crimes demonstrates just how complicated it can be to determine if punishment serves to deter crime, or to merely make it more difficult for the offender to ever enter civil society again, once he or she has been

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labeled as a criminal. Both juvenile justice and the death penalty provoke particularly heated debates about the impact of deterrence.

Terms & Concepts

Browning-Ferris Industries, Inc. v. Kelco: An 1989 Supreme Court decision that held that the 8th amendment prohibition against cruel and unusual behavior is not applicable to punitive damage awards.

Criminogenic Effect: The opposite impact of deterrence, punishment instead leads to increased criminal activity in the future.

General Deterrence: This type of deterrence works on society at large, and is a reaction to the observation that criminal behavior carries a risk too high to assume.

Labeling: "Experiences in the criminal justice system leads to increased criminal behavior because of diminished opportunities for success in …law-abiding activities, or because of a process of self-identification… in which the individual who is 'labeled' adopt the …behavior patterns that are characteristic of the label" (Schneider & Ervin, 1990, p. 587).

Punishment Avoidance: When a crime is committed, and no punishment follows, future criminal behavior is encouraged, both for the individual and the population at large.

Punitive Damages: "Are awarded in civil actions to punish defendants for, and deter them from engaging in reprehensible behavior" (Hall, 2005, p. 805).

Recidivism: This measures the likelihood that an offender will repeat illicit behavior.

Roper v. Simmons: A 2005 Supreme Court decision that juveniles were no longer eligible for the death penalty.

Specific Deterrence: Focuses on the individual. The purpose of punishment is to discourage the perpetrator from future criminal behavior by encouraging the understanding of the consequences.

Subjective Utility Theory: Individuals are self-interested, utility maximizers.

Bibliography

Apel, R. (2013). Sanctions, Perceptions, and Crime: Implications for Criminal Deterrence. Journal Of Quantitative Criminology, 29, 67-101. Retrieved October 28, 2013 from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=85385886

Bhati, A., & Piquero, A. (2007). Estimating the impact of incarceration on subsequent offending trajectories: Deterrent, criminogenic, or null effect? Journal of Criminal Law & Criminology, 98, 207-253. Retrieved September 23, 2008, from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=32432685&site=ehost-live ..F.-Benard, S. (2013). Reputation systems, aggression, and deterrence in social interaction. Social Science Research, 42, 230–45. Retrieved October 25, 2013 from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=83314994

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Flynn, E. (2008). Dismantling the felony-murder rule: Juvenile deterrence and retribution post-Roper v. Simmons. University of Pennsylvania Law Review, 156, 1049-1076. Retrieved September 23, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=32016040&site=ehost-live

Hall, K. (2005). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press.

Hylton, K. (2008). A theory of wealth and punitive damages. Widener Law Journal, 17, 927-948. Retrieved September 23, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=32871292&site=ehost-live

Kateb, G. (2007). Punishment and the spirit of Democracy. Social Research, 74, pp. 269-306. Retrieved September 23, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=26378593&site=ehost-live

Lucken, K. (2013). You Say Regulation, I Say Punishment: The Semantics and Attributes of Punitive Activity. Critical Criminology, 21, 193–210. Retrieved October 25, 2013 from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=87090678

Schneider, A., & Ervin, L. (1990). Specific deterrence, rational choice, and decision heuristics: Applications in juvenile justice. Social Science Quarterly (University of Texas Press), 71, 585-601. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=9103182607&site=ehost-live

Schwarzschild, M. (2002). Retribution, deterrence, and the death penalty: A response to Hugo Bedau. Criminal Justice Ethics, 21, 9. Retrieved September 25, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=9156897&site=ehost-live

Sherman, L., & Berk, R. (1984). The specific deterrent effects of arrest for domestic assault. American Sociological Review, 49, 261-272. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=14800146&site=ehost-live

Sitren, A., & Applegate, B. (2007). Testing the deterrent effects of personal and vicarious experience with punishment and punishment avoidance. Deviant Behavior, 28, 29-55. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=23093516&site=ehost-live

Stolzenberg, L., & D'Alessio, S. (2004). Capital punishment, execution publicity and murder in Houston, Texas. Journal of Criminal Law & Criminology, 94, 351-380. Retrieved September 25, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=12788283&site=ehost-live

Weisburd, D., Waring, E., & Chayet, E. (1995). Specific deterrence in a sample of offenders convicted of white- collar crimes. Criminology, 33, 587-607. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=9601100085&site=ehost-live

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Suggested Reading

Braga A, Weisburd D. The Effects of Focused Deterrence Strategies on Crime: A Systematic Review and Meta-Analysis of the Empirical Evidence. Journal Of Research In Crime & Delinquency [serial online]. August 2012;49:323-58. Retrieved October 28, 2013 from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=78031090

Luna, E. (2007). Traces of a libertarian theory of punishment. Marquette Law Review, 91, 263-294. Retrieved September 23, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=29974485&site=ehost-live

McGuire, J. (2002). Criminal sanctions versus psychologically-based interventions with offenders: A comparative empirical analysis. Psychology, Crime & Law, 8, 183. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=9019040&site=ehost-live

Nagin, D. S. (2013). Deterrence in the Twenty-First Century. Crime & Justice, 42, 199-263. Retrieved October 28, 2013 from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx? direct=true&db=sih&AN=90256797

Sherman, L., Smith, D., Schmidt, J., & Rogan, D. (1992). Crime, punishment, and stake in conformity: Legal and informal control of domestic violence. American Sociological Review, 57, 680-690. Retrieved September 24, 2008 from EBSCO online database Academic Search Premier: http://search.ebscohost.com/login.aspx? direct=true&db=aph&AN=9301281113&site=ehost-live

~~~~~~~~ Essay by Cheryl Bourassa, M.A.

Cheryl Bourassa earned a Master's Degree in early American History in 1991 from the University of New Hampshire. She worked as a certified Social Studies teacher in the Concord, NH public schools for twenty years, before leaving to pursue a writing and research career. She is involved in refugee and political activities in her home town of Concord, NH.

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