Unfair (65 page)

The shark has been hunted:
Goodwin and Benforado, “Judging the Goring Ox,” 15.

How much of a numbing agent:
Goodwin and Benforado, “Judging the Goring Ox,” 15.

If your motivation is ensuring:
Goodwin and Benforado, “Judging the Goring Ox,” 15, 20.

But your answer
should
change:
Goodwin and Benforado, “Judging the Goring Ox,” 18–19.

Sure enough, that's what Geoff and I:
Goodwin and Benforado, “Judging the Goring Ox,” 18–19.

We can alter the types:
Goodwin and Benforado, “Judging the Goring Ox,” 19–23.

People are driven by retribution:
Goodwin and Benforado, “Judging the Goring Ox,” 19–24.

On a purely rational level:
Goodwin and Benforado, “Judging the Goring Ox,” 20.

But our true intentions:
Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 211; Kevin M. Carlsmith and Avani Mehta Sood, “The Fine Line between Interrogation and Retribution,”
Journal of Experimental Psychology
(2008): 191, doi: 10.1016/j.jesp.2008.08.025.

Indeed, there is a growing:
Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 215, 233; Anna-Kaisa Newheiser, Takuya Sawaoka, and John F. Dovidio, “Why Do We Punish Groups? High Entitativity Promotes Moral Suspicion,”
Journal of Experimental Social Psychology
48 (2012): 931; Aharoni and Fridlund, “Punishment Without Reason,” 2; Fiery Cushman, “Punishment in Humans: From Intuitions to Institutions,”
Philosophy Compass
10 (2015): 118, doi: 10.1111/phc3.12192. For examples of the experimental research suggesting that retribution is the primary motive for punishment, see Kevin M. Carlsmith, John M. Darley,
and Paul H. Robinson, “Why Do We Punish? Deterrence and Just Deserts as Motives for Punishment,”
Journal of Personality and Social Psychology
83, no. 2 (2002): 284–99, doi: 10.1037/0022-3514.83.2.284; John M. Darley, Kevin M. Carlsmith, and Paul H. Robinson, “Incapacitation and Just Deserts as Motives for Punishment,”
Law and Human Behavior
24, no. 6 (2000): 659–83, doi: 10.1023/A:1005552203727; Robert E. Harlow, John M. Darley, and Paul H. Robinson, “The Severity of Intermediate Penal Sanctions: A Psychophysical Scaling Approach for Obtaining Community Perceptions,”
Journal of Quantitative Criminology
11 (1995): 71–95, doi: 10.1007/BF02221301; Robert M. McFatter, “Purposes of Punishment: Effects of Utilities of Criminal Sanctions on Perceived Appropriateness,”
Journal of Applied Psychology
67, no. 3 (1982): 255–67, doi: 10.1037/0021–9010.67.3.255; Derek D. Rucker et al., “On the Assignment of Punishment: The Impact of General-Societal Threat and the Moderating Role of Severity,”
Personality and Social Psychology Bulletin
30, no. 6 (2004): 673–84, doi: 10.1177/0146167203262849; Tom R. Tyler and Robert J. Boeckmann, “Three Strikes and You Are Out, But Why? The Psychology of Public Support for Punishing Rule Breakers,”
Law and Society Review
31, no. 2 (1997): 237–65, doi:10.2307/3053926; Mark Warr, Robert F. Meier, and Maynard L. Erickson, “Norms, Theories of Punishment, and Publicly Preferred Penalties for Crimes,”
The Sociological Quarterly
24 (1983): 75–91. doi: 10.1111/j.1533–8525.1983.tb02229.x. It is worth noting that some of the research in this area rests on faulty methodology, as Geoff and I have shown (see the first study in Goodwin and Benforado, “Judging the Goring Ox,” 2–3, 5–7), so further investigation is warranted.

In their view, this is only:
Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 215, 233. Other psychologists are skeptical of this model of moral judgment. See, e.g., Malle, Guglielmo, and Monroe, “A Theory of Blame.”

We've worked, for instance:
For instance, the Model Penal Code—an influential template developed to help modernize and standardize penal law across the United States—treats many attempted crimes the same as accomplished crimes. Dressler,
Understanding Criminal Law
, 412.

To hold someone responsible:
Dressler,
Understanding Criminal Law
, 117.

But starting in the thirteenth:
Dressler,
Understanding Criminal Law
, 117.

Voluntarily swinging the ax:
Dressler,
Understanding Criminal Law
, 85.

As the esteemed judge:
Oliver Wendell Holmes,
The Common Law
(Boston: Little, Brown, 1881), 2; Dressler,
Understanding Criminal Law
, 120.

The requirement, in the words:
Morissette v. United States, 342 U.S. 246, 251 (1952); Dressler,
Understanding Criminal Law
, 117.

Of course, different legal systems:
The Royal Society,
Brain Waves Module 4: Neuroscience and the Law
(London: The Royal Society, December 2011), 13.

In England, for example:
The Royal Society,
Brain Waves Module
4, 13 n. 26. The Convention on the Rights of the Child specifically charges countries with setting a minimum age “below which children shall be presumed not to have the capacity to infringe the penal law.” “Old Enough to Be a Criminal?,” UNICEF, accessed May 27, 2014,
http://www.unicef.org/​pon97/p56a.htm
.

Although state practice varies:
“The Infancy Defense,” The 'Lectric Law Library, accessed May 27, 2014,
http://www.​lectlaw.com/​mjl/​cl032.htm
.

As we saw earlier:
Roper v. Simmons, 543 U.S. 551, 551 (2005); Adam Liptak, “Justices Bar Mandatory Life Sentences for Juveniles,”
New York Times
, June 25, 2012,
http://www.nytimes​.com/​2012/06/26/us/justices-bar-mandatory​-life-sentences-for-juveniles​.html?hp&_r=0&gwh=5BFD4CE723571FCE5BBBB753D40EBE7D​&gwt=pay
.

The juvenile court system itself:
Rachel Aviv, “No Remorse,”
New Yorker
, January 2, 2012, 57.

As Benjamin Lindsey, a pioneering:
Aviv, “No Remorse,” 57.

Likewise, no matter how heinous:
Atkins v. Virginia, 536 U.S. 304, 304 (2002);
Roper
, 543 U.S. 551, 568–69; Dressler,
Understanding Criminal Law
, 333–59.

Perceived blameworthiness does track:
Adam Benforado and Geoff Goodwin, Unpublished Experiment.

But these judgments are sensitive:
Benforado and Goodwin, Unpublished Experiment.

People believe that a boy:
Benforado and Goodwin, Unpublished Experiment.

If through
pure chance
: Benforado and Goodwin, Unpublished Experiment.

What's more, on average:
Benforado and Goodwin, Unpublished Experiment.

Indeed, people punish the unlucky:
Although no harm came to the passengers of the car in the “harmless” condition, it is worth noting that we tried to ensure that the action of the boy was identical, so in both cases the bottle that he threw smashed the windshield of the vehicle. Benforado and Goodwin, Unpublished Experiment. For more on the psychology of “moral luck,” see Fiery Cushman, “Crime and Punishment: Distinguishing the Roles of Causal and Intentional Analyses in Moral Judgment,”
Cognition
108 (2008): 353–80.

In this context, it is hardly:
Aviv, “No Remorse,” 57.

And it is entirely expected that:
Some states have appeared to react to the Supreme Court's rulings in good faith—California foremost among them. Erik Eckholm, “Juveniles Facing Lifelong Terms Despite Rulings,”
New York Times
, January 19, 2014,
http://www.nytimes.com/​2014/01​/20/us/juveniles​-facing-lifelong-terms​-despite-rulings.html?_r=1
.

Our hidden drives help explain:
Erik Eckholm, “Juveniles Facing Lifelong Terms.” In other cases, legislators have responded by enacting strong new mandatory minimums—twenty-five or more years before parole becomes an option—for juveniles who commit murder. Eckholm, “Juveniles Facing Lifelong Terms.”

We profess not to blame:
Dressler,
Understanding Criminal Law
, 350.

If our moral processing always:
Cory J. Clark et al., “Free to Punish: A Motivated Account of Free Will Belief,”
Journal of Personality and Social Psychology
106, no. 4 (2014): 502.

But we often seem to be:
Clark et al., “Free to Punish,” 502. So, why are we driven to punish in the first place? Evolutionary psychologists suggest that the shared desire to blame and punish those who have committed wrongs provided a fitness benefit in a complex social world in which the danger of others taking harmful action was ever present. Clark et al., “Free to Punish,” 502–03; Paul H. Robinson, Robert Kurzban, and Owen D. Jones, “The Origins of Shared Intuitions of Justice,”
Vanderbilt Law Review
60 (2007): 1633.

We want to hold someone:
Clark et al., “Free to Punish,” 501, 508; Mark D. Alicke, “Culpable Control and Psychology of Blame,”
Psychological Bulletin
126 (2000): 556–74; Joshua Knobe, “Intentional Action and Side Effects in Ordinary Language,”
Analysis
63 (2003): 190–94; Elaine Walster, “Assignment of Responsibility for an Accident,”
Journal of Personality and Social Psychology
3 (1996): 73–79.

That is strange indeed:
Clark et al., “Free to Punish,” 508.

Studies show that when:
Azim F. Shariff et al., “Free Will and Punishment: A Mechanistic View of Human Nature Reduces Retribution,”
Psychological Science
25 (2014): 1568–69; Clark et al., “Free to Punish,” 502; Lisa G. Aspinwall, Teneille R. Brown, and James Tabery, “The
Double-Edged Sword: Does Biomechanism Increase or Decrease Judges' Sentencing of Psychopaths?”
Science
337, no. 6096 (August 2012): 846–49, doi: 10.1126/science.1219569; John Monterosso, Edward B. Royzman, and Barry Schwartz, “Explaining Away Responsibility: Effects of Scientific Explanation on Perceived Culpability,”
Ethics and Behavior
15 (2005): 139–58, doi: 10.1207/s15327019eb1502_4.

And the connection may run:
Clark et al., “Free to Punish,” 508.

Wanting to punish the judge:
Interestingly, not only do people report stronger beliefs in free will after considering immoral behavior than after assessing neutral behavior, but real world data also shows that countries with higher crime and murder rates also have higher beliefs in free will. Clark et al., “Free to Punish,” 501, 508.

When it comes to our moral intuitions:
Experiments show that judgments of causation, for example, are contingent both on whether the consequences of an action are harmful or helpful (with harmful consequences giving rise to a greater sense of causality) and whether the purpose of the action giving rise to a harm was good or bad. Clark et al., “Free to Punish,” 502. In one study, people viewed a driver as possessing more causal control in an accident when he crashed racing home to hide drugs from his parents than when he was racing home to hide an anniversary present he had bought them. Mark D. Alicke, “Culpable Causation,”
Journal of Personality and Social Psychology
63, no. 3 (1992): 368–78.

That is remarkable, given that:
Alexander Volokh, “n Guilty Men,”
University of Pennsylvania Law Review
146 (1997): 174. Remember, even back in the early Middle Ages, before mental state and capacity requirements were introduced, there still needed to be proof that the defendant in question caused a harm. Dressler,
Understanding Criminal Law
, 85, 117.

As Benjamin Franklin explained:
Benjamin Franklin,
The Writings of Benjamin Franklin
, vol. 9, ed. Albert Henry Smyth (London: Macmillan, 1906): 295; Volokh, “n Guilty Men,” 174.

The famous English jurist:
Volokh, “n Guilty Men,” 174.

Even the Bible says that:
Volokh, “n Guilty Men,” 173, 177.

In one set of experiments:
Benforado and Goodwin, Unpublished Experiment.

In the first scenario:
Benforado and Goodwin, Unpublished Experiment.

In the third scenario:
Benforado and Goodwin, Unpublished Experiment.

Not surprisingly, participants showed:
Benforado and Goodwin, Unpublished Experiment.

But they didn't see:
Benforado and Goodwin, Unpublished Experiment.

The shark from the same species:
Benforado and Goodwin, Unpublished Experiment.

In related work, researchers looked:
Fiery Cushman, A. J. Durwin, and Chaz Lively, “Revenge without Responsibility? Judgments about Collective Punishment in Baseball,”
Journal of Experimental Social Psychology
48 (2012).

What they found was that nearly:
Cushman, Durwin, and Lively, “Revenge without Responsibility?” 1108

When it was their team:
Cushman, Durwin, and Lively, “Revenge without Responsibility?” 1109.