Monday, November 26, 2007

Justice v. Process

Let me add an endorsement to Doug Berman’s recommendation of this SSRN article for which he provides a link and the abstract. The whole thing is worth going to the bottom of the SSRN page and clicking for the article. The article calls for broad application of empirical psychology to the study of the motive behind punishments and discusses how the general public’s notions of punishment correspond overwhelmingly to ideas of retributive justice, that is, proportional justice, not the utilitarian forms that focus on deterrence or incapacitation. Before you think that that would lead to more severe punishments in practice, note that the general public guesses that their state’s laws correspond to their own sense of properly proportional punishment but that their estimates of what is proportional and thus in state law are below what the law actually prescribes. Much of that is undoubtedly due to basing punishments on the worst possible case, usually just described in detail in the news or some movie, but nevertheless, it means that we end up erroneously claiming to base our punishments on what the public wants. And the authors make the case well that this disjunction between what the public thinks the punishments should be and what they are and between citizens who want justice and a process that wants other things will ultimately weaken the law’s legitimacy and its ability to set the norms for a society (yes, they cite Tom Tyler’s work as we frequently do here as well).

A couple of other implications they don’t really draw and might not want to claim. Their research was with a broad sample, not focused on victims or judges. Their findings, therefore, were applicable to what we as a community think the properly proportional punishments should be, not what specific victims want, another point to consider as we throw out the broader community’s welfare for the approval of specific victims in our laws and processes. And it would be very interesting to see if and how much results from judges would correspond to the general public’s. There’s also the question of whether guideline systems with their very few variables considered in fashioning grids encompass the range of variables that produced the results in this study. By shoehorning the factors at play at judgment, we may be losing even more the nuances that the public brings into play in determining just punishments, and thus harming our laws’ legitimacy even more in specific cases. We can certainly argue that that seems to be the case on the fed level.

Anyway, I liked this article very much, as you can tell, beyond the usual point made here that the practitioners have sold out the client public's wants and wishes for justice in the name of making their own lives and egos easier. One of the things that has struck me as a non-lawyer in this law-infected policy arena is the general lack of concern about how poorly we identify the goals of sentencing at either the specific case or general overarching levels where policy has to be made. Legal types after all these decades (centuries? millennia?) are still whacking back and forth at “is retribution best?” or “can we deter?” and so on. No wonder policymakers like these in OH just go where the mood suits, contradicting themselves and producing counterproductive policies, when there’s still no agreed-upon and authoritative underpinning for what we’re actually trying to do with our punishments. The best of all worlds would be a system requiring judges to state at sentencing the goal(s) they were seeking with the sentence and the reasons why they believed that sentence was the best possible to achieve that goal. That would lead to greater use of existing data and research and likely stimulate even more. It’s the kind of thing the WI Supreme Court claimed to be advocating in its sentencing case law while I directed the sentencing commission there but followed through so horribly (see “talk’s not walk” in the picture dictionary and that court’s opinion’s will be the first picture). It’s still a very good idea, however, and increasingly practical. All it will need will be leadership, stamina, and retirements and funerals. Maybe articles like this one can start the ball rolling.

1 comment:

ipsedixiter said...

Too bad it's 73 pages long...