Paul H. Robinson

Why Do We Punish? Deterrence and Just Deserts as Motives for Punishment

One popular justification for punishment is the just deserts rationale: A person deserves punishment proportionate to the moral wrong committed. A competing justification is the deterrence rationale: Punishing an offender reduces the frequency and likelihood of future offenses. The authors examined the motivation underlying laypeoples use of punishment for prototypical wrongs. Study 1 (N = 336) revealed high sensitivity to factors uniquely associated with the just deserts perspective (e.g., offense seriousness, moral trespass) and insensitivity to factors associated with deterrence (e.g., likelihood of detection, offense frequency). Study 2 (N = 329) confirmed the proposed model through structural equation modeling (SEM). Study 3 (N = 351) revealed that despite strongly stated preferences for deterrence theory, individual sentencing decisions seemed driven exclusively by just deserts concerns.

Incapacitation and Just Deserts as Motives for Punishment

What motivates a persons desire to punish actors who commit intentional, counternormative harms? Two possible answers are a just deserts motive or a desire to incarcerate the actor so that he cannot be a further danger to society. Research participants in two experiments assigned punishments to actors whose offenses were varied with respect to the moral seriousness of the offense and the likelihood that the perpetrator would commit similar future offenses. Respondents increased the punishment as the seriousness of the offense increased, but their sentences were not affected by variations in the likelihood of committing future offenses, suggesting that just deserts was the primary sentencing motive. Only in a case in which a brain tumor was identified as the cause of an actors violent action, a case that does not fit the standard prototype of a crime intentionally committed, did respondents show a desire to incarcerate the actor in order to prevent future harms rather than assigning a just deserts based punishment.

Criminal Law Defenses: A Systematic Analysis

Unlike many aspects of the criminal law, defenses have not yet been the subject of comprehensive conceptual analysis. The general nature and scope of most defenses have been perpetuated for centuries with little or no question. Current debates commonly focus on whether a particular defense should apply in a particular circumstance, but rarely consider the larger perspective. How do circumstances covered by one defense compare with those of other defenses? Do defenses overlap? If so, will the outcome in identical situations vary with the defense asserted? Should it? Are there gaps between defenses, that is, circumstances in which our common sense of justice suggests that the defendant should be exculpated, yet where no defense applies? Do defenses based on theoretically analogous grounds of exculpation generate analogous results? The general inquiry, which seems never to have been undertaken, is: how does the collection of recognized defenses operate as a system? In sharp contrast to this neglect of defenses, the American criminal law community has examined in detail the full range of offenses and their interrelation. Led by the drafters of the Model Penal Code, states have during the past two decades adopted modern criminal codes that replace a confusing and inconsistent collection of offenses with a thoughtfully organized system. The jumble of offenses in older codes was commonly drafted ad hoc, in response to one highly publicized incident or one anti-crime crusade after another. Modern codes, in contrast, define and arrange all offenses according to a single definitional scheme based on the central elements of the offense: the nature of the interest injured, the extent of the injury, and the culpability of the offender. The result is a significant consolidation of related offenses, few overlaps, few gaps, and a consistency in the organization of offenses that permits the comparisons and classifications necessary for a fair sentencing system. There are, no doubt, many people who believe that defenses defy such systemization. Defenses, it might be argued, are the embodiment of such complex human notions of fairness and morality, tempered by the demands of utility and efficiency, that they are too complex and perhaps too illogical to be reduced to an integrated, comprehensive, and internally consistent system of exculpation. This may well be true, but the complexity and perhaps irrationality of human judgments have not deterred us in other instances, especially in the law, from attempting to devise a principled system that attempts to approximate such judgments. Advances in the behavioral sciences have repeatedly demonstrated that some systemization of human thought is possible, even though it may have absolute limits. While we may not be able to reduce our feelings about exculpation to a precise final form, the level of sophistication in examining, understanding, and setting down the most fundamental principles seems to have fallen far behind our attempts to explicate our notions of justice in other legal areas, including criminal justice matters such as offense definition and procedural fairness. This Article attempts to provide some measure of conceptual organization for criminal law defenses that may foster a more refined system of defenses analogous to the system of offenses and offense definition embodied in most modern criminal codes. Part I of the Article describes a general conceptual framework for such a system; part II discusses the practical implications of the framework.

Structure and function in criminal law

PART I: INTRODUCTION PART II: OPERATIONAL STRUCTURE PART III: FUNCTIONAL STRUCTURE APPENDICES A CODE OF CRIMINAL CONDUCT A CODE OF CRIMINAL ADJUDICATION

The Severity of Intermediate Penal Sanctions: A Psychophysical Scaling Approach for Obtaining Community Perceptions

The use of intensive supervision programs (ISPs) and other forms of intermediate penal sanctions is increasing in the United States. This paper describes a preliminary investigation of the extent to which informed New Jersey residents believe that intermediate sanctions that are currently being implemented in their state are severe. Using cross-modality matching of magnitude estimation techniques adopted from psychophysics, we obtained severity ratings of 32 sentences across six sentencing modalities (ISPs, probation, imprisonment, home detention, weekend sentencing, and fines) from respondents who had been briefed beforehand about what these sentences entail. Results indicate that our respondents agree that ISPs, weekend sentencing, and home detention have retributive “bite” and may be accepted as sentences in their own right. Probation was seen as being relatively lenient, while imprisonment was seen as highly severe.

The Ex Ante Function of the Criminal Law

Criminal legal codes draw clear lines between permissible and illegal conduct, and the criminal justice system counts on people knowing these lines and governing their conduct accordingly. This is the ex ante function of the law; lines are drawn, and because citizens fear punishments or believe in the moral validity of the legal codes they do not cross these lines. But do people in fact know the lines that legal codes draw? The fact that several states have adopted laws that deviate from other state laws enables a field experiment to address this question. Residents (N = 203) of states (Wisconsin, Texas, North Dakota, and South Dakota) that had adopted a minority position on some aspect of criminal law reported the relevant law of their state to be no different than did citizens of majoritarian states. Path analyses using structural equation modeling suggest that people make guesses about what their state law holds by extrapolating from their personal view of whether or not the act in question ought to be criminalized.A legal code in a complex society is designed to have several functions. First, it is designed to announce beforehand the rules by which citizens must conduct themselves, on pain of criminal punishment. Second, if a person violates one of these rules of conduct, the criminal law must determine whether the violator is to be held criminally liable. Third, another part of its adjudicatory function, where liability is imposed the law must determine the general range, or grade, of punishment to be imposed.It is the first function that is of interest to us here, the so-called ex ante function of the criminal law. The code announces in advance what actions count as criminal; thus the citizenry can use the announcement to guide their actions to avoid criminal conduct. The law, in other words, draws bright lines between allowable and unallowable conduct, and those lines enable the citizens to regulate their conduct so they do not break the laws. To use a familiar metaphor, the criminal law specifies what sorts of actions are out of bounds, and the penalties for those actions, so the players will stay in bounds. The criminal justice system relies on people knowing the law and knowing where the boundaries for their conduct lie. Ignorance does not excuse unlawful conduct, a fact summarized in the phrase ignorance of the law is no excuse. Such a rule is defended as a useful means of creating an incentive for citizens to learn the law.

Causing the Conditions of One's Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine

One widely-stated goal of criminal law theory is to create the set of rules that best implements our collective sense of justice. To reach this goal, the theorist continuously adjusts his theory so that it generates rules that better reflect our fundamental notions of justice. These rules, moreover, must function as workable doctrine, which in the context of criminal law means precise statutory provisions. It is this process of theoretical refinement and translation that is the topic of this article. Can good theory generate results that approximate our collective sense of justice? Can the theoretical refinements be translated into workable statutory provisions? What limits the success of the translation?As a case study, this article offers a theory to resolve one of the more troublesome areas of criminal law: cases where an actor is in some way responsible for bringing about the conditions of his own defense, such as by provoking anothers use of unlawful force against him or by causing his own intoxication. As Part I illustrates, current law governing such instances is inadequate. It is inconsistent, frequently irrational, and is a poor approximation of our collective sense of justice. Part II offers some basic theoretical principles to govern cases of causing the conditions of ones own defense. These principles are consistent with well-accepted principles of liability and exculpation, and they generate results that accord well with our notions of justice. Nevertheless, dramatic improvement in the law can be realized only if the theory can be implemented through workable doctrine, as expressed in statutes. The statutes proposed here, in fact, face troublesome questions about complexity and difficulties of proof.Part III examines the extent of these problems and offers possible solutions. The most promising solutions, however, have their own problems of constitutional infirmity. Ultimately, then, the confines of the American criminal justice system limit the translation of good theory into workable doctrine.

Competing Conceptions of Modern Desert: Vengeful, Deontological, and Empirical

The dispute over the role desert should play, if any, in assessing criminal liability and punishment has a long and turbulent history. There is some indication that deserved punishment - referred to variously as desert, just punishment, retributive punishment, or simply doing justice - may be in ascendance, both in academic debate and in real world institutions. A number of modern sentencing guidelines have adopted it as their distributive principle. Desert is increasingly given deference in the purposes section of state criminal codes, where it can be the guiding principle in the interpretation and application of the codes provisions. Indeed, a recent committee of the American Law Institute proposed revising the Model Penal Codes purposes section to adopt desert as the dominant distributive principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Courts enthroning retributivism as the primary justification for the death penalty. But there remains a good deal of controversy over the reliance upon desert. It is strenuously argued by some that desert is inappropriate as a distributive principle because it is mean-spirited and harsh, because it has an unhealthy preference for prison, because it is based upon only vague notions that at most mark punishment extremes to be avoided, because people are in hopeless disagreement about what it requires, because it fails to avoid avoidable crime, because it is immoral, and because it is impractical to implement. This Article argues that many of these objections are valid, at least when applied to some conceptions of desert, but that there are at least three distinct conceptions of desert to be found in the current debates, typically without distinction being made between them. The three include what might be called vengeful desert, deontological desert, and empirical desert. Each of the offered criticisms of desert is a fair objection to one of these conceptions of desert but often an unfair objection to another. Thus, an accurate assessment of desert as a distributive principle requires that these three conceptions of desert be distinguished from one another, and that the strengths and weaknesses of each conception be judged on its own.

Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond

The pursuit of fairness and effectiveness has inspired and guided criminal code reformers of the past two decades. Because penal law protects the most important societal interests and authorizes the most serious sanctions the government may impose - the stigma of conviction, imprisonment, and even death - a criminal code, more than any other body of law, should be rational, clear, and internally consistent. Only a precise, principled code that sufficiently defines forbidden conduct can achieve its goals of condemnation and deterrence. Such a code gives citizens fair warning of what will constitute a crime, limits governmental discretion in determining whether a particular individual has violated the criminal law, and provides the distinctions among degrees of harm and degrees of culpability that create the foundation of a fair sentencing system. American criminal law has advanced significantly towards providing such precision, clarity, and rationality, owing in large part to the Model Penal Code. The common law and older codes often defined an offense to require only a single mental state. Under this offense analysis, one spoke of intentional offenses, reckless offenses, and negligent offenses. The general culpability provisions of the Model Penal Code, in contrast, recognize that a single offense definition may require a different culpable state of mind for each objective element of the offense. The majority of American jurisdictions have adopted criminal codes that incorporate this Model Penal Code innovation by requiring courts to apply an element analysis to each offense and theory of liability. Indeed, element analysis may have constitutional significance. Mullaney v. Wilbur, Patterson v. New York, and Jackson v. Virginia require the prosecution to carry the burden of persuasion and the burden of production for all elements of the offense. Implementation of these constitutional demands requires a full and accurate description of all elements. Despite the importance of the Model Penal Code for precision and clarity in criminal law codification, its overwhelming adoption by the states, and its constitutional significance, neither the Model Penal Code drafters nor the legislatures and courts of jurisdictions following the Codes lead fully appreciate the dramatic nature of the Codes innovation and its far-reaching implications. This Article seeks to illustrate the importance of the Model Penal Codes element analysis concept to a rational, clear, and just system of criminal law. It points out the vestiges of offense analysis remaining in the Code and demonstrates how these remnants produce ambiguities in the formulation of offense definitions and in the major doctrines of inculpation. It aims to bring the promise of element analysis to fruition. After a brief review in Part I of the theoretical developments leading to this concept, Part II examines the Model Penal Code provisions that commit the Code to element analysis. Part III summarizes the virtues of such an approach. The Codes implementation of element analysis is, however, defective in many respects. Close scrutiny reveals it to be unworkable in some instances and altogether ignored by courts in others. But these criticisms, described in Part IV, are not meant to impugn the genius of the initial thought. It is the concept of element analysis that facilitates the criticism. Part V proposes a specific culpability scheme for defining offenses and suggests reformulations of the major doctrines of inculpation. These proposals demonstrate the full potential of the concept of element analysis.

Intuitions of justice and the utility of desert

Preface and Acknowledgments Selected Robinson Bibliography Part I. The Nature of Judgments About Justice Chapter 1. Judgments About Justice as Intuitional and Nuanced Chapter 2. Judgments About Justice as a Human Universal: Agreements on a Core of Wrongdoing Chapter 3. The Origins of Shared Intuitions of Justice Chapter 4. Disagreements About Justice Chapter 5. Changing Peoples Judgments of Justice Part II. Should the Criminal Law Care What the Lay Person Thinks Is Just? Chapter 6. Current Laws Deference to Lay Judgments of Justice Chapter 7. Current Laws Conflicts with Lay Judgments of Justice Chapter 8. Normative Crime Control: The Utility of Desert Chapter 9. Building Moral Credibility and the Disutility of Injustice Chapter 10. Deviations from Empirical Desert Chapter 11. Implications for Criminal Justice and Other Reform Part III. The Content of Lay Judgments of Justice Chapter 12. Rules of Conduct: Doctrines of Criminalization Chapter 13. Rules of Conduct: Doctrines of Justification Chapter 14. Principles of Adjudication: Doctrines of Culpability Chapter 15. Principles of Adjudication: Doctrines of Excuse Chapter 16. Principles of Adjudication: Doctrines of Grading Chapter 17. Law-Community Agreement and Conflict, and Its Implications Part IV. Empirical Studies of Lay Judgments of Justice as a Law and Policy Tool Chapter 18. Explaining History: Shifting Views of Criminality Chapter 19. Testing Competing Theories: Blackmail Chapter 20. Testing Competing Theories: Justification Defenses Chapter 21. Guiding Judicial Discretion: Extralegal Punishment Factors Chapter 22. Intuitions of Justice & the Utility of Desert