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June 26, 2012

"Crime, Punishment, and the Psychology of Self-Control"

The title of this post is the title of this new paper by Rebecca E. Hollander-Blumoff now available via SSRN. Here is the abstract:

Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control.  This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment.

Two important broad insights come from examining this psychological research.  First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will.  The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place.  Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions.  That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.”  The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.

June 26, 2012 at 10:04 AM | Permalink

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Comments

"... taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions."

Example: "But officer, I REALLY WANTED that cupcake, and it looked so yummy!"

Posted by: Bill Otis | Jun 26, 2012 12:20:52 PM

I have to admit, the abstract reads like a liberal caricature. It might have merit, but they ought to have known that it would invite belly laughs.

Posted by: Marc Shepherd | Jun 26, 2012 12:30:19 PM

The Dahmer defence hinged on "uncontrollable sexual urges". Dahmer received the maximum sentence for each count.

Unfortunately, one must need to murder more than 15 to earn the death penalty in Wiscahnsin.

Posted by: Adamakis | Jun 26, 2012 3:24:42 PM

So this is what passes a serious scholarship these days?

Here's the formula, which has been repeated ad nauseum:

1. Criminal law requires us to have complete free will (which is false)

2. Psychology/neuroscience/soft science has demonstrated that with contrived experiments with small sample sizes and college students that people are weak-willed.

3. ha! Crooks are not responsible!

Tenure!

Posted by: Joe | Jun 27, 2012 12:26:08 PM

Joe --

Nailed it big time.

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