Life Sentences Blog

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.

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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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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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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