MonthJanuary 2015

Punishment, Consequentialism, and the Appeal of Retribution

Why do we punish? Philosophical justifications for punishment have traditionally fallen into two broad categories: Retribution and consequentialism.

Retributivism looks backwards towards historical wrongdoings, and justifies punishment as what the perpetrator ‘deserves’ given the nature and degree of the transgression committed. Retributive punishment intrinsically values ‘just deserts’, and is indifferent as to whether punishment will have any positive effects in the future.

Consequentialism, on the other hand, is future-directed: It views punishment as justified to the extent that is achieves a desirable outcome for society. The particular desired outcome varies, but goals have included:

– Deterrence of offenders through the experience of punishment;
– Rehabilitation of offenders through treatment during punitive measures;
– Social protection through incapacitation of dangerous offenders;
– The upholding of the legal system;
– Moral education of society at large.

In assessing the support for these theories of punishment, an interesting tension arises between people’s (and policy-makers’) stated preferences and their measured intuitions.

Advocating for retribution-based justice is now taboo amongst policy-makers and politicians: The UK’s Criminal Justice System’s website writes that ‘[t]he purpose of the Criminal Justice System… is to deliver justice…by punishing the guilty and helping them to stop offending, while protecting the innocent”; President Obama earlier this year urged Palestinians and Israelis to “act with reasonableness and restraint, not vengeance and retribution” in order to achieve a “peaceful solution”. This explicit rejection of retribution is mirrored in psychological studies; when asked to provide justifications for punishment, people frequently report a motivation to deter future crimes (Ellsworth & Ross, 1983; Vidmar & Miller, 1980).

When studies assess behaviour rather than stated preferences, however, it seems that humans may be more innately retributivist than we might like to think.

In a study conducted by Jonathan Baron and Ilana Ritov (1993), participants were asked how best to punish a company for producing a vaccine that caused a child’s death. Some were told that a fine would incentivise the company to manufacture a safer product, while others were told that a fine would discourage the company from making the vaccine, and as there were no alternatives on the market, would ultimately lead to more deaths. Most participants were indifferent about this distinction, and wanted the company fined heavily, regardless of the consequence.

In his 2006 study, Kevin Carlsmith presented participants with different information relating to a crime, and found that 97% were drawn to retribution-related information over deterrence-related information. John Darley et al. (2000) similarly found that punishment decisions were highly sensitive to the retribution-related criteria and that participants largely ignored the likelihood of reoffending.

These studies, however, were not able to isolate how much people value retribution alone, because usually punishment both inflicts damage (satisfying the retributive motive) and communicates a norm violation (satisfying the deterrence motive).

A new study by Molly Crockett et al. (2014) solved this problem and isolated retributive motives by examining how much people will pay to punish another person, even when that other person will never know they have been punished (See above for the full study: Essentially, a player could ‘punish’ another defective player by paying to diminish the defector’s financial reward. The punished party, however, is not made aware of their financial position until the end of the game, and cannot know whether anything has been deduced as ‘punishment’.)

“Hidden” punishment, by definition, cannot deter future norm violations, but was nevertheless used by both victims and observers of victims. These findings provide unambiguous behavioural evidence that people are willing to invest personal resources in pure retribution without the possibility of deterrence.

In many cases, of course, the feelings that motivate a desire for retribution may be admirable – such as moral outrage and sympathy and compassion for the victims – but, as Paul Bloom writes, “on many issues, [feelings such as] empathy can pull us in the wrong direction. The outrage that comes from adopting the perspective of a victim can drive an appetite for retribution”.

If we care at all whether a punishment results in lives saved or lives lost, we cannot subscribe to retribution as a guiding principle of justice, however much our intuitions want us to.

To say we have an innate taste for retribution is not, then, to say we should indulge it. It is rather to say that in punishment, as in all areas of social policy, careful reflection, empirical data, and impartial scholarship are always likely to be better decision-making tools than amateur analysis and intuition.

 

References:

Baron, J., & Ritov, I. (1993). Intuitions about penalties and compensation in the context of tort law. In Making Decisions About Liability and Insurance (pp. 17-33). Springer Netherlands.

Carlsmith, K. M. (2006). The roles of retribution and utility in determining punishment. Journal of Experimental Social Psychology, 42(4), 437-451.

Crockett, M. J., Özdemir, Y., & Fehr, E. (2014). The value of vengeance and the demand for deterrence. Journal of Experimental Psychology: General, 143(6), 2279.

Darley, J. M., Carlsmith, K. M., & Robinson, P. H. (2000). Incapacitation and just deserts as motives for punishment. Law and Human Behavior, 24(6), 659.

Ellsworth, P. C., & Ross, L. (1983). Public opinion and capital punishment: A close examination of the views of abolitionists and retentionists. Crime & Delinquency, 29(1), 116-169.

Vidmar, N., & Miller, D. T. (1980). Socialpsychological processes underlying attitudes toward legal punishment. Law and Society Review, 565-602.

Loss Aversion, Framing Effects, and Out of Court Settlement

Imagine you are walking along the street and find £10. Great! You put the money in your pocket. Later, you go to reach for it and it isn’t there any more – you have lost your £10. This feels bad, and, importantly, it likely feels more bad than it felt good when you found it.

This emotional asymmetry is the basis of loss aversion. In prospect theory, loss aversion refers to the tendency for people to strongly prefer avoiding losses than acquiring gains (even when the outcomes of the decision are de facto identical). As demonstrated by Amos Tversky and Daniel Kahneman, losses are on average at least twice as psychologically powerful as gains.

This has a dramatic effect on the way we make choices. If the outcome of a choice is presented as a gain, people will be likely to choose a smaller, but guaranteed, gain, over one that is larger but entails a degree of risk. Conversely, if the outcome is presented as a loss, people will be reluctant to accept a definite loss, and will instead risk losing more for the chance to lose nothing at all. We are, then, very influenced by how a choice is framed.

This is particularly relevant for out-of-court settlement in civil litigation. Settling a legal dispute out of court is typically beneficial for both parties, yet far too few disputes settle when they (mathematically) should, and framing manipulation is one of the many reasons for settlement failure.

In 1996, Law Professor Jeffrey Rachlinski conducted a study in which half of the subjects, the ‘claimants’, could either accept a settlement of $200,000 dollars, or proceed to court where they would stand a 50% chance of being awarded $400,000. The other half, the ‘defendants’, could pay $200,000 to the claimant immediately, or continue to court and risk a 50% chance of being ordered to pay $400,000.

77% of the claimants were happy to take the settlement, but only 31% of defendants were happy to pay it. As predicted, complainants faced with choosing between a definite gain and the chance of a greater gain were risk averse, and defendants were risk seeking when choosing between a guaranteed loss and the chance to pay nothing.

In 2014, Ian Belton and colleagues conducted a study where subjects were presented with a similar scenario, and also examined whether lawyers are as susceptible to framing effects as non-lawyers.

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As predicted, a significant effect of framing was found for both groups, as both non-lawyers and lawyers were much more likely to settle their claim in the gain scenario than in the loss scenario, though the effect for lawyers was less profound.

All parties involved in litigation, then, could benefit from a greater awareness of the biasing effect of framing, and as lawyers we should work to ensure that our clients’ decisions are not influenced by factors that ought to be irrelevant. Litigating in court involves substantial costs, uncertainty, and inconvenience if not stress or distress. If disputes can be settled satisfactorily out of court, then all barriers to mutually beneficial settlement – including framing effects – should be addressed.

References:

Belton, I. K., Thomson, M., & Dhami, M. K. (2014). Lawyer and Nonlawyer Susceptibility to Framing Effects in Out‐of‐Court Civil Litigation Settlement. Journal of Empirical Legal Studies, 11(3), 578-600.

Kahneman, D., & Tversky, A. (1984). Choices, values, and frames. American psychologist, 39(4), 341.

Plous, S. (1993). The psychology of judgment and decision making. Mcgraw-Hill Book Company.

Rachlinski, J. J. (1996). Gains, losses, and the psychology of litigation. S. Cal. L. Rev., 70, 113

 

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