The Capital Punishment Debate: Public Perceptions of Crime and Punishment1

Psychophysical scales for seriousness of crime and severity of punishment were developed to aid in investigating the Eighth Amendment issue of whether the death penalty is “cruel and unusual” punishment. Using indirect crossmodality matching techniques with a quota sample of the Boston SMSA, satisfactory scales were obtained for both dimensions with most items in both scales concentrated toward the serious/severe end as planned. Further, specific case vignettes in which experimental variations were embedded were also developed; psychophysical lines production judgments for these specific cases indicated that quite complex social stimuli can be successfully judged psychophysically. Results indicated that (1) capital and noncapital offenses are thoroughly intermingled in seriousness ratings; (2) the death penalty is not rated as significantly more severe than life imprisonment without parole; (3) respondents assign the death penalty relatively rarely even to serious offenses, and then in a manner not particularly in line with capital statutes; and (4) respondents' weighing of extra-legal and legally relevant aspects of capital cases is inconsistent with current statutes. These results suggest multiple ways in which capital punishment could be defined as “cruel”, and strongly suggest the need for further research and through about the issue.     

得失情境下第三方惩罚决策差异的神经机制：基于rTMS的研究

本研究应用低频rTMS技术,通过在第三方惩罚（研究1）及第三方惩罚和第三方补偿（恢复性惩罚）并存的情况下（研究2）,对个体双侧vmPFC功能进行抑制,探索vmPFC在得失情境下第三方惩罚决策中的作用。研究1结果表明,rTMS抑制右侧vmPFC功能将降低损失情境下的第三方惩罚,收益情境下未发生改变。研究2得到与研究1一致的结果,且第三方惩罚减少程度更大,第三方补偿并未发生改变。这些结果强调了vmPFC与第三方惩罚紧密相关,在第三方判断得失情境的影响时起关键作用。     

On the assignment of punishment: the impact of general-societal threat and the moderating role of severity

This article reports experiments assessing how general threats to social order and severity of a crime can influence punitiveness. Results consistently showed that when participants feel that the social order is threatened, they behave more punitively toward a crime perpetrator, but only when severity associated with a crime was relatively moderate. Evidence is presented to suggest that people can correct-at least to a degree-for the "biasing" influence of these inductions. Finally, threats to social order appear to increase punitiveness by arousing a retributive desire to see individuals pay for what they have done, as opposed to a purely utilitarian desire to deter future wrongdoing. The authors suggest that individuals sometimes act as intuitive prosecutors when ascribing punishment to an individual transgressor based on their perception of general societal control efficacy.     

The social postulate of theoretical ethics

Conclusion Kant believed all and only the guilty should be punished. Other retributivists believed that only guilt should bring punishment down on a person. In neither way is the retributive theory sufficiently distinguished from utilitarianism for, on contingent grounds, the utilitarian may agree with either of these theses. The advantage of PRJ is that it brings out the difference between retributivism and utilitarianism more sharply while at the same time it manages to be a less stern and unyielding view than traditional retributivism. The retributivist need not deny the core of good sense in utilitarianism, and he certainly need not deny the connection between morality and happiness. His view is that punishment does not have to produce good consequences in order to be justified. It suffices that it be deserved and that it not produce a set of clearly bad consequences. If it is true that punishment generally does have bad consequences which more than outweigh its good consequences then retributivists and utilitarians should join hands in their condemnation of punishment. The heart of the difference between the retributivist and the utilitarian is that the latter counts punishment itself as an evil but believes that, generally speaking, it is an evil which is instrumental in the production of enough good to out-weigh its intrinsic demerit. The retributivist does not regard punishment as an evil. The pain of punishment is not by itself a reason for not punishing (so long as it is not excessive). Insofar as utilitarianism is the view that no considerations but those of utility should justify punishment, it is only one side of that counterfeit coin the other side of which is Kant's dictum: ...Woe to him who creeps through the serpent-windings of Utilitarianism to discover some advantage that may discharge him from the Justice of Punishment, or even from the due measure of it.... It is irrational for Kant to rule out concern for utility but it is also irrational for the utilitarian to rule out concern for retribution.I have tried to show in this paper that the two main aspects of a plausible theory of retribution - PRJ and that the punishment should fit the crime - can be vindicated in terms of acceptable beliefs one of which is incompatible with utilitarianism (PRJ), and one of which does not derive the respect we accord it from any connection with utilitarianism. I emphasize, however, what I previously stated, that the retributivist does not have to believe that retributive justice must prevail at all costs. What is asked for is the recognition that one purpose of punishment (and not the one purpose) can justifiably have nothing to do with utility. The sensible retributivist will concede, and gladly, that there are more things in heaven and earth than retribution.     

The concept of Lichnost’ in criminal law theory, 1860s–1900s

This essay discusses criminal law theories in late Imperial Russia. It argues that, although the political climate of Reform and Counter Reform effectively undermined attempts to implement new legislation premised on the idea of the ‘rights-enabled person’ (pravovaya lichnost’), paradoxically, it fostered the growth of juridical scholarship. Russian criminal law theorists engaged critically with Western juridical science, which, beginning in the 1870s, witnessed a shift away from absolutist theories inspired by the classics of philosophical idealism towards various strains of positivism arguing for the restoration of the person as a concrete, physiological being. However, while Russian scholars were drawn to these new trends of criminal anthropology and the sociology of crime, they were also obliged to take stock of an indigenous legal culture that scarcely differentiated between pravo and zakon, together with a long tradition of customary practices that equated crime and punishment with sin and redemption.     

主观社会阶层正向预测利他性惩罚

利他性惩罚是指个体自行承担成本来惩罚违规者的行为, 它受到社会阶层的影响。研究1利用2013年中国综合社会调查数据发现阶层显著正向预测利他性惩罚。研究2 (N = 450)基于真实生活事件的调查表明, 惩罚成本调节了阶层对惩罚的影响：在成本较高的直接惩罚中, 阶层正向预测惩罚; 而在成本较低的间接惩罚中, 这种作用不再显著。研究3 (N = 232)通过操纵阶层与成本进一步证实惩罚成本的调节作用：高阶层者比低阶层者更有可能做出利他性惩罚, 但两者的差距在高成本条件下更突出。研究4 (N = 125)综合考察了阶层影响惩罚的心理机制, 多层线性分析显示：惩罚成本较低时, 阶层通过公正世界信念来间接影响惩罚, 而成本较高时, 阶层直接正向影响了惩罚。上述结果意味着利他性惩罚受到个体社会阶层的影响, 同时也在一定程度上说明在利他性惩罚中基于成本-收益的策略性考虑并非完全缺席。     

Rescuing Fair-Play as a Justification for Punishment

The debate over whether ‘fair-play’ can serve as a justification for legal punishment has recently resumed with an exchange between Richard Dagger and Antony Duff. According to the fair-play theorist, criminals deserve punishment for breaking the law because in so doing the criminal upsets a fair distribution of benefits and burdens, and punishment rectifies this unfairness. Critics frequently level two charges against this idea. The first is that it often gives the wrong explanation of what makes crime deserving of punishment, since the wrongfulness of murder is not primarily about unfairness. The second is that it implies that all crimes deserve the same degree of punishment, because all crimes create the same degree of unfairness. These objections are viewed as revealing fatal flaws in the theory. Although Dagger attempts to meet these objections by drawing on political theory, Duff responds that this still draws upon the wrong kind of resources for meeting these objections. This paper argues that these two objections rest on a crucial mistake that has been overlooked by both the defenders and critics of fair-play. This mistake results from failing to distinguish between what justifies punishment as a response to crime (which requires a common element to all crime) and what justifies attaching particular penalties to crimes (which requires making distinctions in the severity of crime). The arguments presented will give reasons to consider fair-play as a viable justification for legal punishment.     

The fairness of Hell

The Christian conception of Hell as everlasting punishment for past sins is confronted with two charges of unfairness. The first is the inequity of an eternal punishment. The never‐ending punishment seems disproportionate to the finite sin (Kershnar, Lewis, Adams). A second and related problem is that the boundary between sins that send one for all eternity to Hell and those sins that are slightly less bad that are compatible with an eternity in Heaven is arbitrary and thus it is unfair that sinners so alike are treated differently (Sider). Hell, as traditionally conceived, is then claimed to be incompatible with God's traditional attributes such as his commitment to justice, omniscience and omnipotence. The unfairness can be avoided by appealing to God's foreknowledge and a debt/atonement theory of punishment. My view is analogous to refusing to parole the unrepentant. If a wrongdoer is eternally defiant, then he can never be released from Hell for his debt won't ever be paid if he isn't reformed and reconciled with the wronged. So it doesn't matter that his initial sin was a finite wrong not deserving of infinite punishment nor a sin no worse than that of the penitent in Heaven.     

Enforcing Christian Nationalism: Examining the Link Between Group Identity and Punitive Attitudes in the United States

This article examines whether the convergence of an individual's religious and national identities promotes authoritarian attitudes towards crime and deviance. Drawing on theories of social control and group conformity, as well as Christian nationalism's influence on intolerance toward out‐groups, I argue that the inability to distinguish between religious and national identities increases desire for group homogeneity and therefore increases willingness to utilize formalized measures of social control. Analysis of 2007 Baylor Religion Survey data demonstrates that adherence to Christian nationalism predicts three indicators of authoritarian views toward controlling crime and deviance: support for capital punishment, stricter punishment for federal crime, and for society to “crackdown on troublemakers.” These effects are robust to the inclusion of a comprehensive battery of 20 socioeconomic, political, and religious controls, and are consistent with previous research on Christian nationalism showing it is not religious commitment or traditionalism per se that leads to intolerant attitudes, but rather the conflation of one's religious identity with other social identities, in this case national. These findings indicate that, beyond sociopolitical and religious influences, the belief that the United States is, and should be, a “Christian nation” increases desires for group conformity and strict control for both criminals and “troublemakers.”     

Mixed Theories of Punishment and Mixed Offenders: Some Unresolved Tensions

Mixed theories of legal punishment treat both crime reduction and retributive concerns as irreducibly important and so worthy of inclusion in a single justificatory framework. Yet crime reduction and retributive approaches employ different assumptions about the necessary characteristics of those liable to punishment. Retributive accounts of legal punishment require offenders to be more responsive to moral considerations than do crime reduction accounts. The tensions these different assumptions create are explored in the mixed theories of John Rawls, H. L. A. Hart, and Andrew von Hirsch. It is argued that none of these theories successfully resolve the tensions. The prospects for resolving them are then discussed.     

Hegelian restorative justice

In the Philosophy of Right, Hegel claims that crime is a negation of right and punishment is the “negation of the negation.” Punishment, for Hegel, “annuls” the criminal act. Many take it that Hegel endorses a form of retributivism—the theory that criminal offenders should be subject to harsh treatment in response and in proportion to their wrongdoing. Here I argue that restorative criminal justice is consistent with Hegel's remarks on punishment and his overall philosophical system. This is true, in part, because restorative justice integrates Hegel's instructive discussion of confession and forgiveness in the Phenomenology of Spirit. Hegel claims that true moral relationships allow space for persons to confess their moral shortcomings and forgive the shortcomings of others. Restorative criminal justice brings the perpetrators and victims of crime together to offer confessions and forgiveness and to work to heal the various wounds caused by crime. I do not claim that Hegel must be read as advocating restorative justice. While Hegel tells us what punishment does, he does not commit himself to any form of punishment. What I offer here is a rational, progressive reconstruction and extension of Hegel's conception of crime and punishment.     

Persons, punishment, and free will skepticism

The purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the “using persons as mere means” objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications must therefore endorse treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a “hypothetical consent” justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance.     

What Punishment for the Murder of 10,000?

Those who commit crime on a grand scale, numbering their victims in the thousands, seem to pose a special problem both for consequentialist and for non-consequentialist theories of punishment, a problem the International Criminal Court makes practical. This paper argues that at least one non-consequentialist theory of punishment, the fairness theory, can provide a justification of punishment for great crimes. It does so by dividing the question into two parts, the one of proportion which it answers directly, and the other of ‘anchoring points’ which it assigns to a broader theory of enforcement (which may have a non-consequentialist or consequentialist version).     

安乐死非犯罪化问题的法理探究

安乐死概念提出后,围绕其争论就从未停止过,安乐死已不仅是一个医学问题,而是一个社会问题。通过分析安乐死的正当性、合法性,从刑事理性的角度论证了在我国现实境况下解决安乐死问题的可行途径。从安乐死事实上的非犯罪化,进而提出对安乐死案件审查的司法措施。     

The construction of gender in halakhic Responsa by the Reform movement: transgender people as a case study

ABSTRACT

This article contributes to the expanding field of trans-Jewish-feminist studies in general, and to the scholarship about Jewish law in particular, by analyzing the ways in which the Reform movement has gradually legitimized transgender people and accepted them fully. Applying Judith Butler's ideas about the heterosexual matrix as an analytical tool, the article demonstrates how the Reform movement, in a slow and gradual process, has left the entire heterosexual matrix behind, although it can be claimed that the process (of leaving behind the heterosexual matrix) has not run all the way to a complete dissolution.     

Should there be a duty to report crime?

A number of studies have examined why people do or do not respond when they observe criminal activities. Traditionally, the legal system has not punished the failure to report a crime. This study sought to ascertain whether a sample of college students and public citizens thought there should be legal punishments for the failure to report crimes. Respondents (N = 301) were presented a list of illegal acts and asked to select from a list (no punishment, fine, or prison sentences) what type of punishment should be enforced for failure to report that crime. Analysis indicated that the sample thought there should be punishments for most of the crimes, with a fine as the modal response. For more serious crimes, more serious punishments were selected, and there were some sex differences. It appeared that public support for such laws might be strong.     

Reactions to youth crime: perceptions of accountability and competency

Recent changes in juvenile justice policies have stimulated debate among legal professionals and social scientists. As such, public opinion concerning juvenile offenders is an important and timely topic for empirical study. In the present study, respondents read a scenario about a juvenile who committed a crime, and then decided on a sentence and rated perceptions of the juvenile's accountability and legal competence. Four between-subject factors were manipulated: age of the defendant (11 versus 14 versus 17 years), type of crime (shooting versus arson), crime outcome (victim injured versus died), and time delay between the instigating incident and the crime (immediately versus one day). The type and outcome of the crime were major motivating factors in sentencing decisions and perceptions of legal competence, and, although younger offenders were seen as less accountable and less competent than older offenders, sentence allocation and attitudes towards punishment were not significantly affected by offender age.     

Some Surprising Implications of Negative Retributivism

Negative retributivism is the view that though the primary justifying aim of legal punishment is the reduction of crime, the state's efforts to do so are subject to side‐constraints that forbid punishment of the innocent and disproportionate punishment of the guilty. I contend that insufficient attention has been paid to what the side‐constraints commit us to in constructing a theory of legal punishment, even one primarily oriented toward reducing crime. Specifically, I argue that the side‐constraints limit the kinds of actions that are appropriately criminalised, the kinds of beings who are appropriately liable to legal punishment, and the absolute and comparative severity of sanctions. I also argue that a third retributive constraint is needed, one which I term a ‘non‐degradation constraint’. According to this third constraint, in our efforts to reduce crime, we must avoid treating offenders as non‐moral beings and ensure that punishment does not atrophy or erode the complex capacity for moral responsibility. When this third constraint is combined with the persuasive instrumental case for promoting the moral responsiveness of offenders, the result is an approach to crime reduction that is quite different from ones which emphasise general deterrence and incapacitation. In the closing section, I broach the question whether negative retributivism has been appropriately characterised in the literature on legal punishment.     

From Silence to Propagation: Understanding the Relationship between “Stop Snitchin” and “YOLO”

Beginning in the early twenty-first century, “Stop Snitchin”—a technique of not speaking to police—was at the forefront of urban hip-hop culture. With the exponential growth of social media, however, the idiom switched to “YOLO”—You Only Live Once. This phrase has glamorized American values of individualism and exceptionalism, thus contradicting “Stop Snitchin,” as people use social media as a platform to display their exploits and apply “YOLO” to dismiss criminal and deviant behavior. This article examines the intersections of social media, crime, and deviance as well as the influence of the prison industrial complex on social promotion of crime and deviant behavior. Using cultural criminology, this article seeks to identify how power is achieved through different forms of impression management, moving from silence to broadcasting in three ways: (1) chance, (2) announced, and (3) rehearsed performances.     

Retributivism revisited

I’ll raise a problem for Retributivism, the view that legal punishment is justified on the basis of desert. I’ll focus primarily on Mitchell Berman’s recent defense of the view. He gives one of the most sophisticated and careful statements of it. And his argument is representative, so the problem I’ll raise for it will apply to other versions of Retributivism. His insights about justification also help to make the problem particularly obvious. I’ll also show how the problem extends to non-retributive justifications of punishment. I’ll argue that Berman’s argument makes a questionable assumption about the standard of justification that justifications of punishment must meet to be successful. If we think about what it takes to justify punishment and reflect on the intuitions that retributivists appeal to, it turns out that the intuitions aren’t obviously up to the task.