Weisberg on Restorative Justice: The Dangers of “Community”

I’ve been reading some more of Robert Weisberg’s scholarship in anticipation of his visit.  I enjoyed his thoughtful, if ultimately somewhat equivocal, reflections on restorative justice at 2003 Utah L. Rev. 343.  In a sense, his comments here pick up where his critique of Dan Kahan leaves off (see this post).  He is concerned that Kahan’s proposals to build and enforce community norms through the criminal-justice system may, in practice, become a vehicle for the sort of harsh populism that has so dominated our politics of crime and punishment.  Similarly, his critique of restorative justice focuses on the sloppy and potentially dangerous ways that RJ proponents invoke the idea of “community” as a basis for criminal-justice reform.

Those who have spent some time reading the RJ literature will immediately recognize the centrality of community to the RJ rhetoric.  The term carries many positive connotations, and is often used by RJ proponents to suggest a fundamentally different level of social organization than the “state” or other politically defined groupings.  (more…)

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Weisberg v. Kahan

In anticipation of next week’s visit by Robert Weisberg, I reread one of his articles that made a big impression on me when it first appeared a few years ago: “Norms and Criminal Law, and the Norms of Criminal Law Scholarship,” 93 J. Crim. L. & Criminology 467 (2003).  This is basically an extended — perhaps even a little too extended, at 125 pages — critique of the scholarship of Dan Kahan.  Kahan has had a huge influence on many other criminal law scholars (I’ll include myself among those influenced), so Weisberg is taking on a worthy adversary.  And, on the whole, I think his criticisms hit the mark.

(Kahan himself, I should note, delivered a fascinating lecture at Marquette Law School not so long ago.)

In order to appreciate the significance of Kahan’s agenda, it is helpful to think about it (as Weisberg does) as a response to the law and economics movement.

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“Reality-Challenged Theories of Punishment”: Weisberg Lecture on Oct. 6

I’m looking forward to Robert Weisberg’s talk here next week.  He is delivering this year’s George and Margaret Barrock Lecture on Criminal Law.  I think we can expect a pungent critique of retributive theories of punishment.  Here is the description:

The theme of “American exceptionalism” has found perverse corroboration in the size of the prison population, according to Weisberg. At the same time, discourse about the “purposes of punishment” is thriving, with a recent revival of highly abstract theorizing about the nature and legitimacy of retribution, he says. In this lecture, Weisberg will describe the disconnection and recommend ways of overcoming it, stressing that the abstract theorizing must be more sensitive to what punishment means and what effects it has in modern America.

The lecture will be at 12:15 on October 6.  For more information and to register, see the lecture website.

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Is Desert-Based Punishment the Best Way to Control Crime?

I’ve noted a few times (e.g., here) Paul Robinson’s much-discussed theory of “empirical desert.”  Briefly, Robinson has attempted to provide a utilitarian justification for desert-based punishment.  His view is that criminal law and sentencing should track popular beliefs regarding the relative blameworthiness of different categories of crime.  When the criminal-justice system does not conform to widely shared beliefs regarding just punishment, the system’s legitimacy is diminished.  This is important because the system’s legitimacy is, more than anything else, what leads people to feel a sense of obligation to obey the law.  Thus, the desert-based approach (as opposed, for instance, to one built around competing theories like efficient deterrence or selective incapacitation) is the one that is most likely to lead to the best crime-control results.

I think Robinson’s theory offers a useful way to establish some common ground among utilitarians and retributivists, although I also think that Robinson has somewhat oversold the potential for empirical desert to provide clear answers to the really tough questions in criminal-justice policy.

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Does Mens Rea Matter?

In a new article in Psychology, Public Policy, and Law, N.J. Schweitzer and coauthors report on a set of experiments intended to show whether neuroimage evidence has a greater impact on jurors than other types of evidence of psychological or neurological dysfunction.  The answer is basically no — jurors do not give greater weight to expert testimony when it is accompanied by fancy brain scans.

What I find more interesting and provocative about the article, though, is what it seems to reveal about how little mens rea matters in decisions about guilt and sentencing.

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More on the New Brain Science

Here’s a post-script to my comments a few days ago on David Eagleman’s argument that criminal law must be fundamentally rethought in light of the science undermining the concept of free will.  As I noted, pharmacology is one of the cornerstones of Eagleman’s case against free will: we’ve discovered in the past fifty years that a growing array of psychological pathologies can be effectively treated with medications that act on the brain’s production and use of neurotransmitters.  That’s the conventional wisdom, anyway.  It turns out, though, that the pharmacological evidence may not be nearly so strong as Eagleman claims. 

I’ve just read this fascinating review by Marcia Angell of three new books on the American mental illness epidemic (NY Rev. of Books, June 23, 2011, at 20).  The most compelling evidence on the weakness of the “chemical imbalance” theory of mental illness comes from Irving Kirsch’s The Emperor’s New Drugs: Exploding the Antidepressant Myth.  Kirsch used FOIA to obtain otherwise-confidential FDA reviews of placebo-controlled clinincal trials of antidepressants.  Here’s what he found.

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Even More From Moore

I posted a few times last year on Michael Moore’s classic Placing Blame (see here, here, and here).  There’s just one more part of the book I’d like to make note of, particularly as it relates to my post here on teaching theory in Criminal Law.  Here’s how I set up the problem:

In my last couple of Criminal Law classes, I’ve taken a little time out from doctrine to discuss punishment theory. As is conventionally done in Criminal Law, I’ve contrasted utilitarian and retributive theories. Doing this makes me a little nervous, because I’m afraid students will get the wrong idea that punishment theory is useless. Here’s the image I have: a student stuck at the crossroads of punishment theory — one road heading towards utilitarianism and the other towards retributivism — feeling utterly incapable of choosing which path to take. ”The Kantians and Benthamites have been arguing over the foundations of moral theory for two centuries,” I imagine the student thinking, “so how can I hope to resolve the debate?”

Indeed, this is pretty much where I was when I started teaching Criminal Law — stuck at the crossroads.

What I have since come to appreciate, and what I now tell students, is that the choice of which path to take is much less important than first appears — these are twisting paths that run closely parallel to one another about as often as they head in opposite directions.

I went on in the post to describe a variety of ways to reconcile retributive and utilitarian approaches.  In this regard, Moore makes what I find to be  a helpful distinction between agent-relative (deontological) and agent-neutral (consequential) retributivism, and presents the concept of “threshold deontology.”

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More Thoughts on the Retributive Urge

My previous post summarized some fascinating psychological research on the urge to punish norm-violators.  I raised the question of whether and to what extent the criminal-justice system ought to try to satisfy this urge.  My thoughts on this question are still evolving, but I continue to feel, as I have for some time, both that just deserts ought to be regarded as a central aim of the criminal-justice system and that the system must beware of the risk of retributive rhetoric and emotions spiraling out of control into penal excess.

Let me unpack this a little.  The legal system exists primarily to keep the peace, to provide an alternative to the cycles of bloody private vengeance so vividly represented in Aeschylus’s Oresteia.  If the legal system is to preempt private vengeance and other forms of violent self-help, then it must be responsive to widely shared intuitions regarding who deserves what degree of punishment.

This does not mean, however, that the system should simply seek to gratify the punitive urge in full in every case.  My key premise is that there is no clear, stable quantum of punishment that is necessary to satisfy the intuitive desire to punish in most cases.  This premise presents both a risk and an opportunity.

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Punitive Retaliation Is Normal and Gratifying; Should It Be the Basis for Our Criminal-Justice System?

The desire to punish people who violate social norms transcends culture.  The desire is intuitive, emerging from thinking processes that are not accessible to our conscious scrutiny.  Witnessing norm-violations by others triggers negative emotional responses, while the punishment of norm-violators generates feelings of satisfaction.  Or so suggests a burgeoning body of experimental research on the psychology and neurobiology of punishment and moral judgment. 

Psychologist John Darley offers a helpful overview of this research in his recent article, “Citizens’ Assignments of Punishments for Moral Transgressions: A Case Study in the Psychology of Punishment,” 8 Ohio St. J. Crim. L. 101 (2010).  The research falls into two categories.  First, there are “scenario studies.” 

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