What\u27s Wrong with Harmless Theories of Punishment

We maintain that conventional punishment theories obscure what is virtually always at the heart of punishment policy debates: harm. Namely, punishment policy disputes reflect contested views about what the harms inflicted by crime are as an empirical matter, and whether these harms ought to be acknowledged by the criminal justice regime as a normative matter. We argue that in order to know who, what, and how much to punish, one must take a position about what the harms of crime actually are. However, conventional punishment theories are mute on this question. When they supply an answer, it is because they have relied on a source outside the boundaries of their own theory to tell us why one crime is worse than another. We contend that discarding harmless theories of punishment, and instead focusing directly on competing views about the harms of crime, would clarify policy debates and open up possibilities for creative, pluralistic solutions to criminal justice problems. In addition to specifying in some detail what the harms of crime are, we offer two examples of how specific punishment policy debates would look different if they focused on harms instead of punishment theories. We also offer an illustration of a punishment policy originally motivated not by punishment theory but by a desire to explicitly address the multiple and particular harms of crime: restorative justice

What\u27s Wrong with Harmless Theories of Punishment

We maintain that conventional punishment theories obscure what is virtually always at the heart of punishment policy debates: harm. Namely, punishment policy disputes reflect contested views about what the harms inflicted by crime are as an empirical matter, and whether these harms ought to be acknowledged by the criminal justice regime as a normative matter. We argue that in order to know who, what, and how much to punish, one must take a position about what the harms of crime actually are. However, conventional punishment theories are mute on this question. When they supply an answer, it is because they have relied on a source outside the boundaries of their own theory to tell us why one crime is worse than another. We contend that discarding harmless theories of punishment, and instead focusing directly on competing views about the harms of crime, would clarify policy debates and open up possibilities for creative, pluralistic solutions to criminal justice problems. In addition to specifying in some detail what the harms of crime are, we offer two examples of how specific punishment policy debates would look different if they focused on harms instead of punishment theories. We also offer an illustration of a punishment policy originally motivated not by punishment theory but by a desire to explicitly address the multiple and particular harms of crime: restorative justice

Objectivist vs. Subjectivist Views of Criminality: A Study in the Role of Social Science in Criminal Law Theory

The authors use social science methodology to determine whether a doctrinal shift-from an objectivist view of criminality in the common law to a subjectivist view in modern criminal codes-is consistent with lay intuitions of the principles of justice. Commentators have suggested that lay perceptions of criminality have shifted in a way reflected in the doctrinal change, but the study results suggest a more nuanced conclusion: that the modern lay view agrees with the subjectivist view of modern codes in defining the minimum requirements of criminality, but prefers the common law\u27s objectivist view of grading the punishment deserved. The authors argue that there is practical value in having criminal law track shared community intuitions of the proper rules for assigning liability and punishment. For that reason, the study results support the often criticized subjectivist view of modern codes in setting the minimum requirements of liability, but disapprove of the modern codes\u27 shift away from the common law\u27s objectivist view of grading

The Perceived Objectivity of Ethical Beliefs: Psychological Findings and Implications for Public Policy

Ethical disputes arise over differences in the content of the ethical beliefs people hold on either side of an issue. One person may believe that it is wrong to have an abortion for financial reasons, whereas another may believe it to be permissible. But, the magnitude and difficulty of such disputes may also depend on other properties of the ethical beliefs in question-in particular, how objective they are perceived to be. As a psychological property of moral belief, objectivity is relatively unexplored, and we argue that it merits more attention. We review recent psychological evidence which demonstrates that individuals differ in the extent to which they perceive ethical beliefs to be objective, that some ethical beliefs are perceived to be more objective than others, and that both these sources of variance are somewhat systematic. This evidence also shows that differences in perceptions of objectivity underpin quite different psychological reactions to ethical disagreement. Apart from reviewing this evidence, our aim in this paper is to draw attention to unanswered psychological questions about moral objectivity, and to discuss the relevance of moral objectivity to two issues of public policy

How effective are the things people say to apologize? Effects of the realization of the apology speech act.

The Cross-Cultural Speech Act Realization Project (Blum-Kulka, House, & Kasper, 1989a) has identified five components of an apology speech act set : five strategies that speakers use to apologize. This study examines the effects of four of those strategies (illocutionary force indicating device, expression of responsibility, promise of forebearance, and offer of repair) on the judgments made by hearers about the speaker and about the apology. Each of the strategies is shown to have an independent effect in improving reactions to the speaker. Further, the magnitude of these effects appear to be roughly similar for each of the strategies. The things people say to apologize do seem to be effective in accomplishing the self-presentational goals of apologizers