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April 28, 2011

Some deep thoughts on punishment theory and criminal procedure

Classes have wrapped up for the school year (though I still have grading to finish), and it will probably be a few days before I start feeling really guilty about returning to all the writing projects that stalled during a busy semester.  This window presents a perfect time to do some deep professional reading, and these two interesting looking pieces on SSRN are going to the topic of my to-read pile:

The Ideological Basis of Punitive Sentiment: Beyond Instrumental and Relational Perspectives by Monica Gerber & Jonathan Jackson

Abstract: Why do people call for the tougher sentencing of criminal offenders? According to an instrumental perspective, punitiveness is driven by the experience of victimisation and fear of crime.  People are motivated to feel safe and secure, and they look to criminal sentencing to reduce the likelihood of future harm.  According to a relational perspective, punitiveness is driven by concerns about social decline and community breakdown. People are motivated to feel part of cohesive social groups, and retributive punishment symbolically restores moral boundaries and values.  Building on the work of Tyler and Boeckmann (1997) and King and Maruna (2009), we present evidence that instrumental and relational predictors each explain some variation in punitive sentiment.  But we also show that instrumental and relational concerns lose much of their explanatory power once we control for an authoritarian ideology.  We conclude with the argument that instrumental and relational concerns are bound up with punitive sentiment and right-wing authoritarianism in complex but as yet rather under-theorised ways in criminology.  Central to neo-Durkheimian attitudes towards punishment may be an authoritarian preference for tight, hierarchical social structures and related beliefs about a dangerous world that lacks cohesion.

Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture?  by Larry Laudan

Abstract: This paper diagnoses several of the liabilities of proof beyond a reasonable doubt, including its subjectivity, its ambiguity, and its presumed universal applicability across all crimes and all defendants.  It argues further that the Supreme Court's repeated claims that this standard follows logically from an acknowledgement that false convictions are worse than false acquittals is an unsound inference.  Finally, it proposes that future discussions of the standard of proof should take place in an environment in which detailed empirical information about the error rates at trial should be the engine driving the re-formulation of the standard of proof.

April 28, 2011 at 06:36 PM | Permalink

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Comments

These look great - thank you so much for passing it along. Looking forward to reading them.

Posted by: anonymous | Apr 28, 2011 7:11:03 PM

First line of the abstract: "Why do people call for the tougher sentencing of criminal offenders?"

Beccause the evidence over the last generation is that it works.

Instead of admitting this truth, the authors just go in for belittling the opposition by pretending that it's all superstituion, nativism and fear.

That this sort of thing passes for "scholarship" is amazing.

Posted by: Bill Otis | Apr 28, 2011 7:12:41 PM

Bill,

You have to forgive these folks, their jobs require that they write, and write prolifically, preferably presenting original sounding ideas at the same time (even if it's just a tiny sliver of originality grafted onto the same tired foundation). It's not nearly so easy as it sounds, especially when you consider that unlike so many other fields there is no ability to conduct controlled experiments on law. If you keep in mind that the vast majority of such material is written to signal to tenure committees that the writer is relevant (and not to actually be read or to make a difference) you will not get frustrated nearly so often.

Posted by: Soronel Haetir | Apr 28, 2011 11:02:37 PM

Bill and Soronel:

What utter BS!

You made the statements first (not me), now you PROVE IT!

Tenure Committees and College Professors (those who can't do; teach), are a major part of the problem.

Remember me: (The gubermint is not my God and it has become parasitic to the truly productive by a million cuts of internal dishonesty and deception), which provide a good living for many apologists.

What studies, with properly defined control and test groups, have demonstrated with a greater than 95% confidence limits that "because the evidence over the last generation is that it (tougher sentencing of criminal offenders (not including the totally immunized DAs at any level)) works."

No straw men or what about defense attorneys.

I will remind you that I am a retired Engineer who saw the game of the FEDS for a long time.

Posted by: albeed | Apr 29, 2011 12:39:22 AM

Soronel --

What gets me is not that they have to write. It's WHAT they write, and this article in particular.

It's just sneering dressed up in academic jargon. They might as well have said that the only people who believe in a retributive theory of justice are Trailer Park Trash and Ladies with Big Hair. If there's something more there, it didn't make it into the abstract.

Meanwhile, so far as appears, they had nothing or next to nothing to say about what is almost universally now acknowledged to be the truth, to wit, that the increase in incarceration over the last generation contributed significantly to the dramatic drop in the crime rate.

To palm off sneering as "scholarship," all the while whiting out the single most important fact about the subject they address, is nothing short of staggering. It's not scholarship; it's the opposite of scholarship.

This makes me more firmly convinced than I was before that faculty hiring and tenure decisions should be based more than they are now on student evaluations.

Posted by: Bill Otis | Apr 29, 2011 1:19:42 AM

"Central to neo-Durkheimian attitudes towards punishment may be an authoritarian preference for tight, hierarchical social structures and related beliefs about a dangerous world that lacks cohesion."

Blah blah blah blah blah. Or people could just want to be cool about all sorts of things in a free society, other than serious crimes. Or people could simply come to the conclusion that people who rape etc. have forfeited their right to be free. I like living in a hip (i.e., gay-friendly) part of the city. And I am pretty much cool with whatever people want to do--i have my own problems to worry about. However, I insist that people who interfere with our right to live our lives by committing serious crimes be removed from society. Does that make me authoritarian? Hardly. I love freedom. And I love the real diversity that comes with it. I just loathe people who make the streets unsafe (and the judges that foist them on us). And the idea that the "right wing" is somehow authoritarian is just plain nuts. My right-wing bona fides are beyond question, and the idea of an authoritarian government telling me or anyone else what to do is beyond unacceptable. Only in left-wing fantasyland is the idea that punishing criminals harshly for serious breaches of the criminal law is somehow authoritarian. No. It's just common sense.

Posted by: federalist | Apr 29, 2011 3:36:50 AM

I thought preponderance of evidence meant 51% likely, clear and convincing, about 65% likely, and beyond a reasonable doubt around 80% likely, beyond any doubt whatsoever, 100% likely. It is a coincidence that there is one exoneration for every 5 death penalties. With technology, a standard approaching beyond any doubt whatsoever, should replace the reasonable doubt standard, especially if 123D is to get enacted.

Posted by: Supremacy Claus | Apr 29, 2011 6:44:48 AM

"...an acknowledgement that false convictions are worse than false acquittals is an unsound inference."

Absolutely, catastrophically not true. True only for the lawyer, who needs the job generated by the criminal acts of the defendant.

Falsely release a typical criminal? Hundreds of crime victims suffer each year, especially members of the family. Real estate values within hundreds of yards of the criminal fall to zero.

Posted by: Supremacy Claus | Apr 29, 2011 6:48:58 AM

federalist --

Great post. Talk about getting to the point.

Posted by: Bill Otis | Apr 29, 2011 9:19:16 AM

Very telling that comments beginning "blah blah blah" get reactions like "great post." The new fashion, a la Donald Trump, seems to be to ignore facts or what your opponents actually say and just mischaracterize their views to your benefit. Pitiful. The opinion data analyzed in the article, from London, not the US, was more nuanced than these defensive Know-Nothing responses might indicate.

Both pieces, which I've now read, include things I disagree with, but they're more credible and substantive than any of the criticisms related here.

Posted by: Gritsforbreakfast | Apr 29, 2011 3:44:13 PM

"No straw men or what about defense attorneys."

Very good albeed but you should be ashamed of yourself for attempting to take away Bill's bread and butter LOL. If Bill can't deal in distractions, you have severely limited his ability to engage.

Of course, I am sure that you have noticed that, so far, he has ignored your post. Another frequent ploy that is used when Bill either can't or won't answer a question. See the "Head in the sand over prosecutorial misconduct" thread from 04-27.

BTW Bill, there is an unfinished item or two there awaiting a response although I never really expected one. I pretty much accept that once again, as is often the case, you have distracted and digressed long enough for that thread to have pretty much passed its shelf life. Looks like the same may be about to happen here if you continue to ignore albeed. In case you may have forgotten, the former subject was prosecutorial misconduct and in response to your attempt to distract and divert the conversation to one concerning defense misconduct, the question was asked " when was the last time that you can cite misconduct by the defense causing someone to be imprisoned for years or being put to death for a crime they did not commit." You may feel free to answer here if it is too much trouble to back track.

And for Grits' comment beginning "Very telling that comments beginning "blah blah blah" get reactions like "great post." Yep, nailed it again Grits.

Posted by: Thomas | Apr 29, 2011 8:29:48 PM

Previous comment to Bill Otis: "I pretty much accept that once again, as is often the case, you have distracted and digressed long enough for that thread to have pretty much passed its shelf life (previous discussion of prosecutorial misconduct). Looks like the same may be about to happen here if you continue to ignore albeed."

Well Albeed, looks like I was right..... Been two days and no response just as I predicted. There will be other opportunities LOL

Posted by: Thomas | May 1, 2011 10:22:27 AM

The reason, reasonable doubt cannot be openly defined? It would end the lawyer cover up. Even a Harvard Law grad with a PhD in Medieval Legal Studies was never told its true meaning. Not once, anywhere, except at a party hearing it from me, repeating 10th Grade High School World History.

"Reasonable" means, "in accordance with the New Testament," an unlawful lawyer utterance in our secular nation. It requires a new degree of mercy that Romans would not have understood. And why is a murderer redeemable? To add a grateful person to church membership, of course.

Even accepting the other cover up, that the reasonable person must be fictitious, any fiction in a trial violates Fifth Amendment procedural due process.

Posted by: Supremacy Claus | May 1, 2011 3:19:26 PM

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