Abstract
This article reveals a discrepancy between the actual and stated motives for punishment. Two studies conducted with nationally representative samples reveal that people support laws designed on the utilitarian principle of deterrence in the abstract, yet reject the consequences of the same when they are applied. Study 1 (N = 133) found that participants assigned punishment to criminals in a manner consistent with a retributive theory of justice rather than deterrence. The verbal justifications for punishment given by these same respondents, however, failed to correlate with their actual retributive behavior. Study 2 (N = 125) again found that people have favorable attitudes towards utilitarian laws and rate them as “fair” in the abstract, but frequently reject them when they are instantiated in ways that support utilitarian theories. These studies reveal people’s inability to know their own motivations, and show that one consequence of this ignorance is to generate support for laws that they ultimately find unjust.
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Notes
Readers may wonder whether severity of harm is truly orthogonal to utilitarian justifications of punishment. Intuitively, it may seem that society has more need to deter serious crimes than petty crimes, and thus that utilitarians ought to carefully consider the danger posed by a particular crime. There are two responses to this. First, the effect of a given crime extends far beyond the initial victim, and includes all those who subsequently live in fear of future crime and those who become more likely to commit crimes as a result of witnessing an unpunished crime. Thus, the “cost” of punishment (borne by the offender) is almost certainly outweighed by the benefit to society, regardless of the punishment’s severity. Second, the logic of deterrence is that it will prevent future crimes merely by the threat of severe sanction. Thus, when Draco decreed in the 7th century BC that virtually all crimes would be punished by death, he perhaps imagined that no more crimes would be committed, and thus that the sentence would never be enforced. Indeed, if one believes in the efficacy of deterrence, then one need not be concerned about “overpunishing” minor crimes, since the threat of punishment alone will ensure that the punishment is never, in fact, carried out.
Retributive justice is largely synonymous with Immanuel Kant’s notion of “just deserts” in that they both seek to punish offenders according to their level of deservingness and in proportion to their offense (see Carlsmith et al., 2002, pp. 296–297). However, due to the negative connotations associated with the term “retribution,” I used the more positively valenced term “deservingness” in the survey descriptions and questions. For presentational clarity and to be consistent with the extant literature, I retain the term “retribution” throughout this article.
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Acknowledgement
I express appreciation to Jennifer Simester who collected data for a pilot version of Study 1, and who provided helpful comments on an earlier draft of this manuscript. Portions of this research were conducted while the author was on leave at Old Dominion University in Norfolk, VA.
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Appendix
Policy A. Any violation of the policy leads to immediate expulsion with no exceptions. The policy is uniform across all grades and schools. The only question to be answered is whether the student violated the policy: if the answer is “yes” then the student is expelled. This policy is designed to eliminate excuses and second-chances, and to send a clear message that the possession, use, and distribution of drugs will not be tolerated in the public schools. The particular type and quantity of drug is irrelevant to this policy.
Policy B. Any violation of the policy will be met with a response proportional to the severity of the offense. The most serious offenses—such as the distribution of recreational drugs or the use of “hard” drugs—will lead to immediate expulsion. Lesser offenses—such as the possession of a marijuana pipe—would result in lesser punishments such as suspension. This policy would take into account whether it was a repeated offense, the type and quantity of the drugs, whether they were medicinal or recreational, and whether the person was in possession, using, or distributing the drugs. Consequences would include counseling, loss of privileges, parent conferences, suspension, and expulsion.
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Carlsmith, K.M. On Justifying Punishment: The Discrepancy Between Words and Actions. Soc Just Res 21, 119–137 (2008). https://doi.org/10.1007/s11211-008-0068-x
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DOI: https://doi.org/10.1007/s11211-008-0068-x