The Disutility of Injustice

Paul H. Robinson & Geoffrey P. Goodwin & Michael D. Reisig

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The past half-century has seen a continuing debate between “retributivists,” who view deserved punishment as a value in itself that does not require further justification, and “instrumentalists,” who view punishment as justified only if it brings about a greater good—typically the avoidance of future crime. That avoidance of crime has been traditionally sought through the mechanisms of deterrence, incapacitation of the dangerous, and rehabilitation.

This long-running debate came to the forefront of criminal law policy again recently, when the American Law Institute amended the Model Penal Code for the first time since the Code was promulgated in 1962. The Code has been the model for the codification of criminal law in three quarters of the states and, for the most part, has represented the epitome of instrumentalist thinking. The recent amendment, however, set desert as the Code’s primary distributive principle. Under the Code, judges may impose punishment according to traditional instrumentalist principles only to the extent that the punishments align with desert.

This change likely reflects a growing appreciation of the idea that doing justice is an attractive distributive principle for both retributivist and instrumentalist reasons. Indeed, some theorists argue that by tracking how laypeople intuitively would assign criminal liability and distribute punishment, the criminal law can engage the powers of social and normative influence. Empirical research shows that laypersons look primarily to moral blameworthiness as a guide to the imposition of appropriate criminal liability and punishment, just as retributivists do. Crime-control benefits flow from following these lay intuitions about justice—or “empirical desert”—rather than from following moral philosophers’ view of desert— or “deontological desert.” By the same token, if the criminal law did not comport with the community’s shared intuitions, it would lack credibility as a moral authority and thus be unable to encourage compliance with its rules.

In this Article, we present three studies that suggest that the shift to a desert distribution—specifically, empirical desert—will not seriously undermine the criminal justice system’s crime-control effectiveness, and indeed may enhance it. The studies show that such a shift is likelier to reduce, rather than to increase, the system’s punitiveness. These empirical findings address the concerns of two distinct groups of people who oppose desert as a distributive principle.

The first group includes those concerned with what they see as the current over-punitiveness of criminal law. They worry that setting desert as the dominant distributive principle means furthering the punitive system that they find so objectionable, and perhaps even making things worse. Under this reasoning, current crime-control doctrines are a product of the community’s views of justice, and thus should be decried as “populist punitiveness.” Giving formal deference to that conception of justice, they worry, will only exacerbate the situation. But as our Study 1 shows, current crimecontrol doctrines seriously conflict with people’s intuitions of justice by exaggerating the punishment deserved. Thus, a distribution of liability and punishment that tracks lay intuitions of justice would significantly reduce the injustice now present. The modern crimecontrol doctrines are not a product of the community’s sense of justice, but rather a product of the distortions inherent in American crime politics.

The second group encompasses those concerned with ensuring effective crime control. They worry that a distributive principle based on desert will miss many opportunities to control crime and thus increase avoidable crime. But as Studies 2 and 3 show, deviations from desert are not cost-free. In fact, the costs are significant, and they follow from the system’s reduced moral credibility within the community it governs. Deviating from desert undermines the criminal justice system’s moral credibility and thereby undermines its crime-control effectiveness. Specifically, this undermines the criminal law’s power of stigmatization, increases the chances of vigilantism, promotes resistance and subversion rather than the cooperation and acquiescence that the criminal justice system requires, undermines compliance in borderline cases where the condemnatory nature of the offense may be ambiguous, and reduces the criminal justice system’s influence in the public conversation by which social norms are shaped.
The three studies are discussed in turn.

I. Study 1: Testing the Perceived Justice of Modern Crime-Control Rules

The goal of this study was to examine subjects’ treatment of cases in which the law called for applying common instrumentalist-based legal doctrines such as felony murder, adult prosecution of juveniles, and habitual offender statutes. The 317 subjects, who were drawn from across the country, were asked to read twenty-four different scenarios. The scenarios each implicated a different legal doctrine and ranged in severity from murder to petty theft. Half of the cases were intended to be unambiguous: These twelve cases provided “milestones,” as it were, for the subject’s punishment continuum, against which the remaining twelve “crime-control” cases could be compared. After ranking and assigning punishment to each milestone case, subjects ranked and assigned punishment to each crime-control case.

Subjects tended to agree on the ranking of the milestone cases and, to a lesser extent, the ranking of the crime-control cases. Even though the crime-control cases all called for harsh punishment in real life, subjects consistently ranked them as being dramatically less serious and deserving of considerably less punishment. The differences between how the law punished and how the subjects punished were sometimes astonishing: 40-60 years instead of 2.9 years (a strict liability offense), life without parole instead of 3.1 years (three-strikes offense), 40 years instead of 10.7 (felony murder), and life without parole instead of 4.2 years (drug offense). Indeed, it seems indisputable that the modern crime-control doctrines are treating cases in ways that dramatically conflict with lay people’s intuitions of justice.

How can a democratic process produce liability rules that the community sees as unjust? While we cannot pinpoint one single reason why the democratic legislative process produces crime laws that conflict with the intuitions of justice of the community, we can point to a number of factors that work together to cause such results. The influence of the media in shaping public opinion often causes people to profess opinions that they would not hold if given all of the information in any particular case. People’s generalizations of crime opinions, and their construction of crime archetypes upon which they base their sentencing judgments, often simplify their thinking to the point that because only the worst crimes are reported and come to mind, they, when polled, often want to impose only the worst punishments. As such, any particular legislator can look to this flawed public opinion and conclude that the majority supports harsher crime laws, when in fact they do not. Moreover, the democratic process on the whole tends to invite harsh punishment laws. The media’s crime reporting is often based on information provided by the government—and it has been shown that public concern about crime often follows legislative consideration of crime issues, rather than being the cause of said action. Additionally, legislators’ self-preservation interest dictates that they not put themselves in a position that could be vulnerable to attack by a rival—a situation that is often brought about by advocating sentencing reduction or opposing harsher penalties, even if such reforms would be in accord with empirical desert.

II. Studies 2a and 2b: The Criminogenic Effects of Injustice

Studies 2a and 2b were designed to test for evidence that reduced moral credibility in the criminal justice system would produce disillusionment, which in turn could undermine deference to that system. Specifically, these studies examined whether knowledge of the extent to which existing criminal law doctrines deviate from ordinary intuitions of justice can affect people’s general respect for and deference to the law, as well as their willingness to cooperate, support, and comply with it. We hypothesized that, where criminal law doctrines deviate dramatically from ordinary intuitions about justice, such awareness of the law’s predictable injustices and failures of justice could indeed negatively affect people’s attitudes towards the law, as well as weaken their behavioral intentions to cooperate, support, and comply with it.

In Study 2a, fifty-nine subjects took an online survey. They were asked a series of questions to assess their general attitudes and behavioral intentions with regard to the criminal justice system. They were then exposed to a set of cases in which the criminal justice system in a hypothetical jurisdiction gave liability and punishment that was unjust: either too high or too low. Subjects were then asked the same set of questions regarding their views—to be answered on the assumption that they lived in that hypothetical jurisdiction. The question of interest was whether their answers on the questions when subjects responded as if they were living in that hypothetical system would differ from their earlier baseline answers under the criminal justice system in which they currently lived.

Results indicated that subjects’ attitudes and behavioral intentions shifted noticeably from the baseline. For most questions, responses moved reliably in the direction of decreased reliance on, and decreased willingness to comply and cooperate with, the criminal law. Moreover, these shifts occurred with respect to each of the three areas of interest we investigated: deference to the law in drawing conclusions about condemnability of conduct relevant to shaping norms, intention to cooperate with and assist the system, and intention to comply with it.

Study 2a shows how knowledge that a criminal justice system produces systematic injustices can produce negative attitudes toward that system. The study also suggests that those negative attitudes can lead to diminished intentions to defer to, cooperate with, and comply with the law. Since Study 2a could be criticized for demand characteristics, we undertook Study 2b, which split a sample of 207 subjects into two groups. The experimental “high-disillusionment” group was presented with cases not in line with lay intuitions, while the control “no-disillusionment” group was presented with cases more in line with lay intuitions.

The results of Study 2b were consistent with Study 2a. As predicted, the subjects in the high-disillusionment group showed less deference to and less willingness to assist or cooperate with the criminal justice system than did subjects in the low-disillusionment group when responding to the test questions.

The results of these studies suggest that there are costs to crime-control that result from doing injustice. Doing justice, by contrast, has the clear benefits of greater assistance to and cooperation with the criminal justice system—upon which the system much depends—and greater ability to harness the powerful forces of social influence and internalization of norms both to gain compliance in borderline cases and to shape norms where needed. However, it could be argued that instances of injustice and of systematic failures of justice may not be immediately and fully appreciated by the community. The fog of media errors and inaccuracies may protect the system’s reputation even when it is undeserving, and thus a loss of moral credibility and its attendant harms might not arise from deviating from desert. But this is an unrealistic assessment. What seems likely is that, just as crime is news (thereby exaggerating the rate and nature of crime), so too are injustice and failure of justice. Even if the nature of the news coverage hides some portion of the deviations from desert, the more frequently and more seriously the system deviates from desert, the greater the chance that such deviations will come to light. Worse, even a very few disclosures have the potential to undermine the system’s credibility. The system’s only protection is to try to do justice as best it can, admitting that there are some limitations on how perfect it can be in practice.

III. Study 3: Effects of Law’s Moral Credibility

In this study, we worked with a larger dataset to see what, if anything, national data might tell us about our hypothesis concerning the practical effects of a system’s moral credibility on the effective operation of the criminal justice system. The dataset consisted of 1,567 telephone interviews of randomly selected adults in the United States; we selected respondents who met all of the following criteria: (1) either the respondent or a member of his or her household had involvement in the courts in the last twelve months; (2) the case was a criminal matter (including juvenile offenses); and (3) in the case, the subject or household member was either a juror or a witness, but not a defendant, and was thus less likely to have a personal stake in the outcome of the case. Of the 1,567 subjects, 146 individuals met these criteria. Of those 146, 141 were suitable for use in the present study. Several survey items were summarized to create the key predictor variable: the extent to which criminal court outcomes in respondents’ communities were consistent with their own ideal, ranging from 3 (low moral credibility) to 15 (high moral credibility). The outcome variable, taken from a single survey question, was, “willingness to rely on the court system to resolve a similar case the subject becomes involved in in the future.” Responses ranged from 1 (“very unlikely) to 4 (“very likely”). Our regression also included gender, age, race, education, and household income variables.

Using a bivariate statistical technique, we found that the relationship between credibility and deference was statistically significant and positive: When the law’s moral credibility is high, people express a greater willingness to defer to the system in the future. The multivariable regression found a strong coefficient for credibility, which was in fact the only significant variable.

These are important findings because they demonstrate the real-world benefits of moral credibility: If those who believe more strongly in the moral credibility of the criminal justice system are more willing to defer to its authority, the incidence of negative activities such as the use of self-help or fleeing from law enforcement or the like should decrease as moral credibility increases. The results also challenge the conventional wisdom that deviations from desert are essentially cost free. Individuals who perceived failures of the criminal justice system were significantly less likely to say they would defer to the system in the future.

IV. Conclusion

We believe the studies discussed here provide assurance to both groups concerned about a shift to desert as the distributive principle for criminal liability and punishment. As Study 1 makes clear, current crime-control doctrines seriously conflict with lay intuitions (we assert due to the distortions inherent to American crime politics), and a distribution of punishment that better tracks such intuitions would significantly reduce the current injustices present in criminal law. Moreover, as Studies 2 and 3 show, the common wisdom that deviation from desert in pursuit of crime control is cost-free is without merit. In fact, the costs may outweigh the instrumentalist benefits of deterrence, incapacitation of the dangerous, and coercive crime-control programs. Coupled with the fact that desert incorporates the power of normative social influence and internalized norms, the low cost of a desert standard suggests that doing justice may be the most effective means of fighting crime in the long run.

In sum, the shift to desert-based distribution—specifically empirical desert—will neither undermine the criminal justice system’s crime-control effectiveness nor increase the system’s punitiveness. Indeed, there is reason to think that, because an empirical-desert standard would better track the community’s shared intuitions of justice, it would increase the effectiveness and reduce the punitiveness of the criminal justice system.


Copyright © 2011 New York University Law Review.

Paul H. Robinson is the Colin S. Diver Professor of Law at the University of Pennsylvania Law School.
Geoffrey P. Goodwin is an Assistant Professor of Psychology at the University of Pennsylvania.
Michael D. Reisig is a Professor of Criminology and Criminal Justice at Arizona State University.

This Legal Workshop Editorial is based on the following Law Review Article: Paul H. Robinson, Geoffrey P. Goowin, & Michael D. Reisig, The Disutility of Injustice, 85 N.Y.U. L. REV. 1940 (2010).

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