The purposes of sentencing: Public support for competing aims

With reform of the sentencing process a priority in both the United States and Canada, there has been a growth of interest in public attitudes toward the goals of sentencing. Two studies investigated the layperson's view of the appropriate purpose of sentencing offenders. Previous work on this topic has simply provided subjects with a checklist of sentencing purposes and asked them to endorse one. The present research—using both college students and members of the general public—employed a procedure that allows researchers to infer the principle underlying sentencing decisions. In the first study, subjects rated the importance of several sentencing purposes and also assigned sentences to offenders described in scenarios. Severity of assigned sentence was significantly correlated only with the seriousness of the offence. Ratings of the importance of general deterrence, incapacitation, or rehabilitation were not significantly related to severity of recommended penalties. This result contrasts with the importance ratings of these purposes provided by the subjects themselves. These findings were replicated in the second study, which employed an independent sample of subjects. In contrast to the results of opinion polls, it would appear that the public is more concerned with the principle of just deserts than with the utilitarian sentencing aims such as deterrence, incapacitation, or rehabilitation. The methodological implications of this research and the consequences of these findings for sentencing policy are discussed.     

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.     

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.     

反社会人格障碍的神经生物学基础及其司法启示

反社会人格障碍(Antisocial Personality Disorder, ASPD)是一种漠视或侵犯他人权益的普遍行为模式, 是与犯罪关联极高的精神障碍。ASPD的形成受基因和环境因素的影响, 表现为神经递质和激素系统的紊乱, 以及自主神经系统活跃程度和大脑结构与功能的异常。上述神经生物学因素可能导致ASPD患者表现出执行控制障碍、情绪功能障碍、无视惩罚信息和奖赏偏好等特点。神经生物学研究的证据为ASPD罪犯的循证矫治、风险评估、定罪量刑等司法实践提供了启示。建议未来从神经生物学角度对ASPD的诊断分类标准、治疗方法和影响因素等方面开展研究。     

Capital punishment in Missouri: Examining the issue of racial disparity

Guided discretion statutes were designed to control arbitrariness and discrimination in capital sentencing. Using data from Supplemental Homicide Reports and Trial Judge Reports, this article examines the issue of racial disparity in Missouri's capital punishment process from 1977 through 1991. Findings from the three decision points examined suggest racial bias against the killers of whites, particularly if the offender is black, and a concomitant devaluation of black victims. The strongest effects noted are in the prosecutor's decision to charge homicide offenders with capital murder and to proceed to penalty trial in convicted capital murder cases. While the effects are not necessarily limited to the least aggravated categories, the effects of race are strongest when prosecutors and jurors are freed from the seriousness of the cases to consider other factors. The racial disparities are also apparent in mid-range cases up until the sentencing stage. However, disparities occurring earlier in the process are not rectified during sentencing. In fact, in the least aggravated cases, racial disparities are magnified at the sentencing stage.     

The effects of essentialist thinking toward biosocial risk factors for criminality and types of offending on lay punishment support

This research uses experimental methods to gauge how different facets of essentialist thinking toward (1) types of offending and (2) biosocial risk factors for criminality predict lay punishment support. A randomized between-subjects experiment using contrastive vignettes was conducted with members of the general public (N = 897). Overall, as hypothesized, aspects of essentialist thinking, particularly informativeness, continuity, immutability, and discreteness, toward both biosocial risk factors and types of offending behavior generally predicted more severe punishments surrounding retribution, incapacitation, and deterrence. Yet, surprisingly, several of the same beliefs, specifically toward discreteness and informativeness, also predicted non-punitive sentiments toward restoration and decreased prison time in some contexts. This work demonstrates that essentialist thinking not only may affect how the public cognitively categorizes biosocial risk factors for criminality and types of offending, but also may have consequences for public support for the punishment of offenders with particular offense records or characteristics.     

Maximizing therapeutic effects in treating sexual offenders in an Australian correctional system

In Australia, the community response to sexual offenders is marked by uncertainty as to whether offenders should be incarcerated as punishment or provided treatment in order to reduce the likelihood of re-offense. The incarceration of sexual offenders results in particular management, ethical, and political issues. Nevertheless incarceration can provide leverage to encourage the offender to participate in treatment while delivering punishment for wrongdoing and acting to protect the community. In the state of Victoria the CORE Sex Offender Programs have developed a statewide strategy in the public correctional system in order to assess, manage, and treat male sexual offenders. However, such offenders are notoriously reluctant to engage in treatment to address offending behaviors. A critical element of the strategy has been the Victorian Adult Parole Board, an entity that can determine that an offender needs to engage in treatment before he is considered for parole. Using the therapeutic jurisprudence framework as outlined by Wexler (1990), strategies to minimize the anti-therapeutic effects of the Victorian Adult Parole Board and maximize the therapeutic effects of the CORE Sex Offender Programs are highlighted.     

Community service for misdemeanours in Accra: Preferences of offenders,victims, judiciary,and community members

Taking religiosity into account, the study explored preferences for community service sentencing by victims, offenders, judiciary, and community members from Accra, Ghana. One hundred and ninety respondents were sampled (females = 38.42%, offenders = 5.26%, victims = 58.95%, law enforcement = 10.52%, members of the Judiciary = 4.74%, and general community members = 65.26%). They responded to the Attitude Towards Community Service Questionnaire, and the data were analysed utilising ANOVA between group difference tests. Offenders expressed a higher preference for community sentencing than victims and members of the judiciary. Religion aligned participants supported community sentencing. Community sentencing seems a preferred sentencing option by a cross section of Ghanaian community members for adult non-violent offenders.     

Glücksspielsucht in der Rechtsprechung des Bundesgerichtshofs

Among the non-substance-related addictions, pathological gambling is the only one that has gained noteworthy forensic relevance. There are numerous parallels to substance-related addictions and not only in the symptomatology. A high proportion of pathological gamblers commit criminal offences to enable them to continue gambling or to pay gambling debts. According to the jurisdiction of the Federal Court of Justice (BGH) pathological gambling in itself cannot be considered as a pathological mental disorder or other serious mental abnormality that substantially diminishes the responsibility of the offender (German Penal Code § 21 StGB); however, the BGH recognizes that in serious cases of pathological gambling mental changes and personality defects can evolve that show similar structure and severity to substance-related addictions and severe withdrawal symptoms might also develop. As with substance-related addictions a substantial diminution of the offender’s responsibility can be assumed, therefore, also with pathological gambling if it has led to most severe personality changes or if the offender suffered from severe withdrawal symptoms while committing an addiction-related crime. According to these criteria a substantial diminution of the offender’s responsibility can be stated only in very rare cases. A custodial addiction treatment order (§ 64 StGB), which is also possible for fully responsible delinquents, is not applicable to cases of mere pathological gambling because the order requires an addiction to alcohol or other drugs. A mental hospital commitment order (§ 63 StGB) can be issued by the court under the same strict conditions that are applied to cases of substance-related addictions. Based on these principles this can only be issued if the defendant is addicted to gambling due to a mental defect that can be distinguished from the addiction itself or if the dependence has already been manifested in very severe personality changes. Pathological gambling can cause a propensity to commit serious offences and therefore, under the further conditions of §§ 66, 66a StGB justify detention for the purpose of incapacitation or a deferred incapacitation order. Even during imprisonment, detainees must be offered a suitable therapy (§ 66c para 2 StGB); however, penitentiaries do not offer the best environment for the treatment of pathological gamblers. The treatment in an addiction therapeutic setting appears to be more promising. Criminal political demands to make custodial addiction treatment orders also applicable to pathological gamblers have, however, very little chance of success.     

Public attitudes about the culpability and punishment of young offenders

Opinions of 789 community adults were individually assessed, using a video-clip of an actual armed robbery and other measures, to determine whether attitudes toward the culpability and appropriate punishment of young offenders were linked to offenders' age, race, and physical appearance. Three major findings emerged: (1) community adults endorse the view that criminal choices of young offenders are influenced by their developmental immaturity and attribute more responsibility for the criminal act as the actor gets older; (2) the public has a relatively strong preference for differential treatment of juvenile and adult offenders; and (3) attitudes about culpability and punishment are not influenced by the culprit's race, physical maturity, or appearance of "toughness." Indications that punitive public opinion toward youth crime may be changing and implications for juvenile justice policy of the study's findings are discussed.     

Sex offenders, sentencing laws and pharmaceutical treatment: a prescription for failure

The phenomenon of adults who have sexual interests involving children as partners, or pedophiles, is considered among the most sociopathological of human conditions. Considerable literature is devoted to issues and problems associated with or related to pedophilia, including prevalence, etiology, treatment, and outcome studies. The sexual victimization of children, based upon data gathered from a number of sources, suggests an intractable problem that is national in scope. Recent manifestations of society's efforts to deal with the sexual victimization of children include the enactment of criminal sentencing laws that mandate the treatment of offenders with certain pharmaceutical agents, such as medroxy-progesterone acetate ("MPA"). Because sentencing laws as a rule vary widely from state to state, there is considerable variation as to who is subject to MPA treatment laws, and how such laws-including specific provisions, such as clinical criteria, if any, required for treatment; type and period of treatment plans; informed consent; etc-are implemented. Most important, these sentencing laws may have remarkably little relation to what is widely considered effective treatment for pedophilia disorders. We examine in detail the most recent sentencing laws pertaining to treatment of persons who have been convicted of sex offenses involving children as victims. Our critique may offer insight and suggestions as to how such sentencing laws can be more suitably tailored to the treatment needs of persons with pedophilia disorders.     

“Prison Will Either Make Ya or Break Ya”: Punishment,Deterrence, and the Criminal Lifestyle

Although a prison sentence is often considered to be among the worst punishments that the state can provide, previous research indicates that offenders do not necessarily share this view. Some inmates, for example, adjust to prison life with relative ease, do not view their time in prison as severe punishment, and may even prefer prison to alternative sanctions such as boot camp or probation. To help explain such views, we point to the utility of a “criminal lifestyle” perspective. We argue that offenders who are committed to the values of the criminal subculture tend to view prison in a unique way. For various reasons, such offenders are less likely than others to view imprisonment as difficult or severe and they are less likely to be deterred by prison. Drawing on data from a large inmate survey, we find initial empirical support for these arguments. Implications for deterrence and future research are discussed.     

Sentencing Convicted Juvenile Felony Offenders in the Adult Court: The Direct Effects of Race

While research indicates that Black and Hispanic adults sentenced in the criminal court tend to be rendered more severe punishments than their White counterparts, only one prior study has examined whether this finding holds for juveniles tried in the adult system. The findings from this sole study need replication, however, since the effects posed by trial type were not taken into account and it is likely that the results are confounded by measurement error resulting from overlap in criminal sentencing. The current study addressed these issues by assessing whether race has a direct impact on waived juveniles being criminally sentenced to restitution, probation, or jail. Data were derived from a secondary, cross‐sectional national dataset on felony juvenile offenders convicted in the adult system. Three hypotheses were tested. After controlling for a number of important legal and extra‐legal predictors of sentencing, race differences in sentencing outcomes were observed and the findings yielded partial support for the hypotheses. The implications of the research are noted. Copyright © 2012 John Wiley & Sons, Ltd.     

societal reaction to sex offenders: a review of the origins and results of the myths surrounding their crimes and treatment amenability

Examination of societal reaction to sexual offenders reveals a history of harshness exemplified by the sexual psychopath laws of the 1930s. The latest round of legal attempts to control sex offenders uses Severe sentencing laws, civil commitment procedures and community notification statutes to confine and shame sex offenders. This paper shows these laws to be based on popular beliefs about the predatory nature of these men, the probability of their re-offense and their amenability to treatment rather than the facts about the sex offenses and offenders. The severe reaction to sexual offenders is a vindictive one based on myth and misunderstanding that serves many interests. The paper exposes the contradictory myths and skewed emotions that guide our view of sex crimes and compares these with the facts about re-offense rates and the effects of treatment.     

A matter of life or death: special considerations and heightened practice standards in capital sentencing evaluations

Mental health evaluations at capital sentencing represent a complex and specialized arena of practice. The moral culpability focus of capital sentencing is distinct from guilt-phase considerations of criminal responsibility, and has a specialized literature. Capital violence risk assessment is uniquely oriented to a prison context, relying on past adjustment to incarceration, as well as group statistical data specific to capital offenders and other inmate groups. Personality testing is a more complex consideration in capital sentencing evaluations. The implications of interviewing the defendant, as well as the parameters and documentation of an interview, make full disclosure and informed consent of particular importance. Defense- and prosecution-retained experts are subject to specific ethical vulnerabilities. These are examined in this paper through the lens of current professional standards.     

Public attitudes toward sex offenders and their relationship to personality traits and demographic characteristics

The present study examined public attitudes toward the sentencing, treatment, management, and perceived dangerousness of sex offenders. Seventy‐eight university undergraduates completed a 25‐item attitude toward sex offenders survey developed for the present study, along with a five‐factor measure of personality (NEO Personality Inventory – Revised), a demographic questionnaire, and the Paulhus Deception Scale, to control for social desirability. While participants most frequently endorsed the belief that sentences were not sufficiently severe, they tended to espouse treatment and risk management alternatives to longer sentences and eschewed exceptionally severe punishments (e.g., surgical castration). Participants estimated high rates of sexual recidivism (59%), although they also estimated significantly lower recidivism rates for treated offenders. Results of a principle components analysis suggested that participant attitudes comprised two broad domains: systems attitudes (e.g., law enforcement, corrections, justice) and rehabilitative attitudes. Although few demographic differences emerged in participant attitudes, ‘openness to experience’ and ‘agreeableness’ each significantly predicted more rehabilitative attitudes, while contrary to expectations, ‘extraversion’ was significantly associated with more negative systems‐related attitudes. The results provide support that personality traits may be linked to important social attitudes, including those toward sex offenders. Copyright © 2010 John Wiley & Sons, Ltd.     

La rétention de sûreté : punir,prévenir et guérir des troubles de la personnalité ?

The law of February 25, 2008 introduced security detention. This is a post-sentence measure intended for offenders who have served their sentence. This may apply to people with personality disorders. Because of these disorders, they are considered too dangerous to be left in society but the importance of the disorders was not sufficient to benefit from the mechanism of criminal irresponsibility. Is the real objective of preventive detention, as indicated in the law, to treat disorders or, more pernicious, to eliminate ex-convicts from society?     

Justice at any cost? The impact of cost–benefit salience on criminal punishment judgments

This study investigated the effect of cost–benefit salience on simulated criminal punishment judgments. In two vignette‐based survey experiments, we sought to identify how the salience of decision costs influences laypeople's punishment judgments. In both experiments (N₁ = 109; N₂ = 398), undergraduate participants made sentencing judgments with and without explicit information about the direct, material costs of incarceration. Using a within‐subjects design, Experiment 1 revealed that increasing the salience of incarceration costs mitigated punishments. However, when costs were not made salient, punishments were no lower than those made when the costs were externalized (i.e., paid by a third party). Experiment 2 showed the same pattern using a between‐subjects design. We conclude that, when laypeople formulate sentencing attitudes without exposure to the costs of the punishment, they are prone to discount those costs, behaving as if punishment is societally cost‐free. However, when cost information is salient, they utilize it, suggesting the operation of a genuine, albeit labile, punishment preference. We discuss the implications of these findings for psychological theories of decision making and for sentencing policy, including the degree of transparency about the relevant costs of incarceration during the decision process.