A large body of experimental research has sought to determine whether punishment is motivated more by instrumental considerations (deterrence, incapacitation, etc.) or by retributive urges. The various studies, although limited in important ways, have generally pointed to retribution as the primary factor in driving penal decisions in response to hypothetical fact patterns.
Add to this body of research an interesting new study Eyal Aharoni and Alan Fridlund, “Punishment Without Reason: Isolating Retribution in Lay Punishment of Criminal Offenders,” 18 Psych., Pub. Pol’y & L. 599 (2012).
Aharoni and Fridlund presented subjects with various versions of a hypothetical homicide case and then asked how much the killer should be made to suffer and what sentence should be imposed.
In the various versions, they cleverly manipulated the facts so as to add or subtract instrumental justifications for punishment. For instance, in one version, the legal proceedings were conducted entirely in private, thus supposedly eliminating general deterrence as a rational purpose of punishment. They also sought to manipulate the intentionality of the crime, stipulating sometimes that it was deliberate and sometimes that it resulted from a brain tumor. Since intentionality is thought to be a key variable in retributive judgments, this manipulation helps to isolate the effect of retributive purposes of punishment.
Consistent with earlier studies, Aharoni and Fridlund found that their subjects wanted the intentional wrongdoer to suffer and to receive a long sentence, even when punishment was useless (in the sense of lacking a deterrent or incapacitative justification).
The authors reached similar conclusions in a second, related study, in which subjects were presented with a single vignette in which punishment again lacked any apparent instrumental justification. Initially, more than 90% of the subjects favored punishment. An interviewer then sought to determine the reasons for punishment, which the interviewer rebutted. For instance, if a subject provided an incapacitative rationale, the interviewer would remind the subject that the offender had become permanently paralyzed after commission of the crime, which removed any threat of future dangerousness. Even after being talked out of any instrumental value to the punishment, more than 70% of the subjects continued to support punishment.
What are we to make of this sort of research? Aharoni and Fridlund suggest that it may provide insights into the psychology of sentencing judges in real-world courtroom settings. I am somewhat skeptical of this suggestion. In addition to the standard objection to much experimental psychology research — the subjects were university students, who are in many respects unrepresentative of the general population — it strikes me that the lack of real consequences and accountability for the “sentencing” decision may potentially have a large impact on the results. ”Irrational” retributive urges are easy enough to indulge in this setting; I would imagine, though, that many judges tend to want additional justifications for harsh punishment when they are face-to-face in the courtroom with the person who will suffer the consequences, perhaps even more so when that person has family members and other supporters who will also be directly affected by the sentencing decision. The involvement of victims and lawyers in the process, expressions of remorse by the offender, and various institutional considerations (e.g., the need to ensure that guilty pleas are appropriately rewarded) also probably tend to diminish the importance of raw retributive urges in real-world courtroom settings.
But, even if we are only talking about attitudes in the general public, this research may still be very important for what it suggests about the politics of crime and punishment. Evaluating a hypothetical vignette is probably not so different from the way that most members of the public engage with the criminal justice system, that is, through reading or hearing media reports of “real” cases that present simplified accounts of what happened and depict the offender in a depersonalized, objectified fashion. If the judgments that members of the public reach in this setting tend to reflect retributive urges, then that may help us to understand more clearly how and why elected officials — who are, after all, accountable to the lay public — make criminal-justice policy.
Recognizing the power of retributive urges, I should hasten to add, does not necessary mean that the criminal-justice system should seek to accommodate those urges without reflection or moderation. I sketched some of the concerns with a reflexively retributive system in some detail in this post.