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July 2, 2018

"The Institutional Design of Punishment"

The title of this post is the title of this notable new paper authored by Aaron Rappaport now available via SSRN. Here is its abstract:

For the past 40 years, policymakers have engaged in a debate over which institution should wield the principal power over punishment.  Should courts and parole boards have the dominant role at sentencing, or should that power be left to legislatures and sentencing commissions?  These debates are typically couched in policy terms, yet they also raise deeply philosophical questions, most notably: What is the morally justified sentencing system?

Perhaps surprisingly, criminal theorists have almost uniformly ignored this normative question, and that neglect has degraded the quality of the on-going institutional debates.  This paper seeks to address that shortcoming by exploring the moral ramifications of design choices in the sentencing field.  In particular, the paper identifies the institutional structure best suited for promoting utilitarianism, a widely-accepted moral theory of punishment.

Drawing insights from cognitive science and institutional analysis, the paper concludes that a properly structured sentencing commission is the institution best able to satisfy the moral theory‚Äôs demands.  Beyond this policy prescription, the paper has a broader goal:To start a conversation about the link between moral theory and institutional design, and to encourage policymakers to explore more fully the premises of their own institutional choices in the criminal justice field.

July 2, 2018 at 09:17 AM | Permalink


Punishment is the sole tool of the law. I would like law student be required to take pre-law courses. One should be Behavioral Psychology, to learn more about their sole tool.

Hallelujah, an academic lawyer used the word, utilitarian, in a sentence. This is a step forward.

Here are other concepts from psychology. What makes punishment effective. Punishment is defined as a consequence that lowers the frequency of a behavior in the future. It is a circular definition, and forward looking. Some of the features of effective punishment include certainty, proximity in time, severity, in that order.

Punishment influences behaviors that are chosen, or intentional, to use common law wording. Punishment agitates people with mental illness, worsening their behaviors.

As likely with all remedies, there is a dose response curve. Too little leads to chaos, and misery. Too much leads to oppression, and misery. The curve has to be worked out.

There are rare historical experiments. In Vietnam, alcohol was prohibited, opiates were allowed. 20% of soldiers became heroin addicts. Upon return to the US, the reverse was true. That fraction dropped to 2%. The remaining fraction shared many traits with non-military opiate addicts. Military discipline was effective in controlling the rates of misuse of substances, and reversed them in the same people, immediately after change in location.

Crime is highly rewarding. There are millions of crimes. They cannot be addressed by the legal system. All low crime jurisdictions share only one feature: public self help. Some are rich/poor, religious/secular, modern/primitive, black/white, rural/urban. In all of them, including the ones in the US, the criminals are more afraid of the neighbors than of the police.

To comply with the requirements of punishment, to obey the Equal Protection Clause, punishment should be decided by robots running algorithms written by the legislature, and updated from incoming data every 2 years.

All lawyer mitigating factors make people more dangerous, and should be considered aggravating factors.

The goal of punishment should be public safety and the drop in the rates of crime. That is the purpose of government, to make people safe to pursue their activity without worrying about personal security. Public self help should be immunized, and rewarded. It should be encouraged by a cultural change.

One reason for 9/11 covered up by the lawyer Mueller Commission was the inaction of the male passengers on the first two flights. Americans are capable of self help, as shown on the third flight. They have been trained by the lawyer profession to not be.

Posted by: David Behar | Jul 2, 2018 12:54:25 PM

"One should be Behavioral Psychology, to learn more about their sole tool."

Look, look, I know that some philosophers argue that humans are just clever animals but this is the first time I've ever heard of of anyone suggesting we are like fish.

Posted by: Daniel | Jul 2, 2018 1:51:23 PM

Daniel. You so funny. More like flesh tearing piranhas, than halibut.

Posted by: David Behar | Jul 2, 2018 5:06:59 PM

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