Emotions and Sentencing

Do emotions have any role to play in determining sentences, or should sentencing be purely a matter of cold logic?  It is certainly risky to base sentences on unexamined emotional responses to crime, which are often quite unattractive.  Following in Nietzsche’s footsteps, the philosopher Michael Moore offers this unsavory catalog of reactions to crime and criminals: resentment, fear, anger, cowardice, hostility, aggression, cruelty, sadism, envy, jealousy, guilt, self-loathing, hypocrisy, and self-deception.  Unchecked, such reactions can give punishment a vicious character that debases the punisher as much as the punished.  Additionally, as Moore also suggests, there seems a connection between some of these emotions and our primal fear of strangers, such that hot-blooded punishment may serve as a vehicle for all manner of bigotries to be expressed.  (See my earlier posts on inflammatory remarks at sentencing here and here.)

Yet, even though they sometimes lead us astray, emotions seem to play a vital role in our day-to-day moral judgments, and it is hard to imagine how sound sentencing decisions could be reached in the absence of any emotional response at all to the crime or the criminal.  

Ideally, then, we ought to find some sort of middle way between suppressing emotions entirely and giving them free rein.

In this regard, while recently rereading Moore’s magisterial Placing Blame: A General Theory of the Criminal Law, I was struck by the good sense of this passage:

We do both them and morality a strong disservice when we accept the old shibboleth that emotions are opposed to rationality.  There is . . . a rationality of the emotions that can make them trustworthy guides to moral insight.  Emotions are rational when they are intelligibly proportionate in their intensity to their objects, when they are not inherently conflicted, when they are coherently orderable, and instantiate over time an intelligible character.  (P. 116)

There is a great deal to unpack here, but this seems at least a promising starting point for sorting out which emotions have a legitimate role to play in reaching penal judgments.

I’ll post “more on Moore” in the coming days.

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