Given the withering public debate in our society over the issues of crime and punishment, one might be hard-pressed to learn that people across political, socioeconomic, and cultural divides agree about anything when it comes to these sorts of hot-button issues. Yet, that is precisely the result that Professor Paul Robinson of Penn Law presented this past Thursday, October 30, at a lively session of the University of Chicago Crime and Punishment Workshop.
So, have we finally discovered the much sought-after consensus on sentencing guidelines that has eluded us for so long? No, of course not, but as Prof. Robinson explained, his research does show that when presented with certain "core" harms—specifically, physical aggression, taking of property without consent, and deceit in exchanges—people's intuitions were in agreement across cultural and demographic divides. In the study, conducted both live and over the Internet, test subjects were presented with a variety of scenarios depicting offenses falling into the category of "core" harms and asked to rank them in order based on which offense deserved the greatest punishment. For instance, given two scenarios, one in which someone punches me in the face and another in which someone breaks into my car and steals some CDs, I would rank the former as deserving more punishment than the latter. The result was remarkably high levels of alignment, not influenced by any factor that one might think should be relevant (for example, education, intelligence, etc.). (For those inclined to statistics, the Kendall's coefficient of concordance was 0.95 and 0.88, respectively, for live and Internet test subjects.)
There are several takeaways from this result according to Prof. Robinson. First, the common wisdom that people disagree fundamentally on the issue of punishment is probably wrong since it has always focused on the absolute amount of punishment, not the continuum, in that, the number of years in prison one crime deserves versus another rather than the ordinal relationship between the crimes vis-à-vis one another. Second, though the "core harms" only account for approximately 20 percent of the criminal code, they probably represent a significantly higher percentage of actual offenses, thus making the result more important still. Finally, insofar as the existing system of punishment does not track people's shared intuitions, the law loses moral credibility—a result that ought to concern us.
The last point is worth expanding upon. Moral credibility may not be the only goal of the law, but as Prof. Robinson points out, deviating from people's shared intuitions of justice is not cost free. Increasing sentences beyond what these intuitions call for may bring the benefit of additional deterrence, but it also adds costs, in particular by reducing the social influence that the criminal law has the potential to provide.
The notion that shared intuitions of justice exist also presents a number of opportunities whereby policymakers may shape societal norms. For instance, can the moral credibility a punishment system acquires by tracking people's intuitions with respect to core harms be "spent" to shape norms in other areas of criminal law where intuition is less in agreement, say domestic violence? Also, what of when shared intuitions are wrong? Is a deontological check required if we are to rely on intuitions? How feasible or reliable would such a check be?
Discussion at the workshop demonstrated that this result raises many new questions. As one faculty member pointed out, it would be important to know what sort of function represents loss of moral credibility as the law deviates from intuition. If it is a threshold function, as one might suspect it would be, then all depends on whether the law has passed the threshold at which people lose faith for inconsistency with their intuitions. If so, tinkering with the law will not correct the larger problem; if not, then there is cushion that can be used to pursue deterrence effects without losing moral credibility. More research is likely required to answer these sorts of nuanced questions.