Do People Really Care About Retribution When There Are Societal Consequences at Stake?
Published November 5, 02020, Page Last Modified November 7, 02020
I was reminded of my favorite class at Harvard while listening to Amanda Askell on the 80,000 Hours podcast. She was discussing (a) the ethical difference between prison and corporal punishment (she came up with a nifty thought experiment that points out how terrible prison really is) and I immediately thought of related conversations from a course I took freshman year with Joshua Greene called Free Will, Responsibility, and Law.
I would also recommend listening to the entire podcast dialogue with Amanda because she covered many other interesting topics including infinite ethics, the importance of clear communication, and the nitty-gritty of academic philosophy.
Table of Contents
Askell on the Difference Between Prison and Corporal Punishment
“Many people believe that corporal punishment - the infliction of pain for the purposes of punishment through caning, beating, whipping, amputation, electrocution, branding, and so on – has no place in a modern criminal justice system. Instead imprisonment is seen as a more ‘humane’ form of punishment, and it is one that is employed in most modern criminal justice systems. But why do we think that imprisonment is humane while corporal punishment is not? [...]―Amanda Askell, "Prison is no more humane than flogging" (a)
What kind of corporal punishment would you need to be offered before you think it would be reasonable for you to be indifferent between that punishment and 10 years in prison? Bear in mind that 10 years in a US prison is 10 years in which you’ll have limited access to your friends and family, 10 years of your career that you’ll lose, 10 years in which you’ll lose autonomy over when you eat, sleep, and exercise, and – perhaps most disturbing to us – 10 years in which you may face the threat of violence and sexual assault.
I think that the corporal punishments we think are equivalent to 10 years in a US prison are worse than many of us would want to admit. For example, I am pretty sure I would prefer to have two of my fingers amputated than go to a US prison for 10 years. It’s not that I think I’d prefer to have two fingers amputated because I am simply failing to think rationally when I think about what I would do if I faced such a terrible choice. It seems to me that I prefer the corporal punishment of having my fingers amputated because I can be fairly certain that I would suffer less if I were to choose this in order to avoid spending 10 years in a US prison. But if amputating two of my fingers for a given crime would not be considered humane, then it is difficult to see how a 10 year prison sentence for the same crime could be when it’s plausible that this causes more suffering.
Imprisonment therefore cannot be more humane than corporal punishment because it causes less suffering. If anything, the suffering imposed by imprisonment seems comparable to the suffering imposed by fairly severe forms of corporal punishment. ”
Do People Really Care About Retribution When There Are Societal Consequences at Stake?
When asked why they punish, people state both retributive and consequentialist reasons. However, previous research by Carlsmith has shown that when people actually punish criminals, they essentially ignore factors that are important to a consequentialist theory of punishment, such as publicity of crime and probability of detecting the crime. Instead, people punish in ways that reflect how serious they find a crime to be and how morally outraged they are. In this study, I show that even though people may desire to punish in a retributive way, they will choose to punish as consequentialists if they are aware of the outcomes of their punishment.
If one of society’s goals is to reduce the amount of crime that takes place, then there are multiple reasons for punishing wrongdoers. Punishment disincentivizes people from committing acts that are deemed unacceptable in the first place (general deterrence; Loewy). And if someone does indeed break the law, then punishment serves as a conditioning tool that deters the lawbreaker from committing more offensive acts in the future (specific deterrence).
However, some view punishment as “an eye for an eye”– if you do something wrong, you deserve to be punished, regardless of what effects the punishment may have. This Kantian view of punishment is called retributivism, and only makes sense if those who receive punishment also act of their own free will (Rauscher, 2017, Greene & Cohen, 2004). The former view, which focuses on future crime and does not mandate that people have free will, is known as consequentialism or utilitarianism (Crimmins, 2017).
Some argue that as new knowledge of neuroscience removes our conception of free will, it no longer makes sense to punish people out of retribution; a consequentialist approach is necessary (Greene & Cohen, 2004). If a shift in how and why we punish is to be made in real life then, the general public must be ready to accept it. Therefore, it is important to consider what intuitions most people have about punishment.
When people are questioned as to why they punish, they state both retributive and consequentialist reasoning (Weiner, 1997, Carlsmith et al., 2002). However, Carlsmith et al. show that when put to the test, people actually punish in a retributive manner. They found that test subjects who are presented with vignettes of criminals breaking the law choose to punish those criminals in ways that correlate with how serious they find the offense and how morally outraged they are, two factors that are important to retributivists. But if people also see from a consequentialist lens, they should punish more harshly when a crime has a low probability of being detected, as well as when a crime is quite public (both heightening general deterrence). Yet both of these factors have little to no effect on how severely participants choose to punish. Similar research confirms this result (Carlsmith, 2008).
Carlsmith concludes that people don’t punish from a consequentialist framework and only care about giving people the punishment they deserve. However, I believe the real conclusion from these studies is simply that when meting out punishment, people aren’t sensitive to factors that don’t directly measure deterrence (in this case, the publicity of a crime and the probability of detecting a crime). Moreover, when oblivious to the effects their punishment may have, people act as retributivists.
I predict that if participants are aware of the consequences of their punishment, they will not act purely out of vengeance, but instead act as consequentialists. It is not punishing that people care so much about. What is important is what societal outcomes their punishment will cause.
The purpose of this study is to see if people care more about giving a criminal what they deserve (harsh punishment vs. gentle punishment) or whether people care more about what consequences a punishment may have on future crime (high recidivism vs. low recidivism). I predict that regardless of harshness, people will choose to punish in a way that minimizes future crime.
Participants: 88 university students were asked to complete short surveys digitally. The average age was 19.3 years; 44% were female.
Procedure and materials: All participants read a short vignette describing an intentionally committed harm, assessed how serious they found the offense, provided a recommended punishment of their own, and then picked between two different punishments which included information about the recidivism rate following each punishment. The independent variable being tested was whether harshness of punishment was directly related to or inversely related to recidivism rate.
Two versions of the survey were given out to participants. Both versions shared the following vignette of a criminal act:
“Harry started out as a clerk in a middle sized independently owned store near where he lived. He spent quite a lot of money going out to bars at night and placing bets on football games. Once he ran low on money, he decided to rob a local family in order to secure money to spend on his nightlife. In the middle of the night, he entered the home of a local family and started to go through drawers looking for jewelry. However, the adults of the household heard noise and went downstairs to investigate the sound. Harry pulled out a gun and murdered both of them. The next day, he was caught and found guilty.”
Both versions included the following two options for punishing Harry: “18 years in Prison A” or “5 years in Prison B.” In order to make one punishment clearly harsher than the other, a longer prison sentence was paired with an uncomfortable prison and a shorter prison sentence was paired with a very comfortable, perhaps enjoyable, prison.
The prisons were described accordingly:
“Prison A is a high-security prison. Prisoners live in their own cells and are allowed out of their cells for only a few hours a day. Food at Prison A is bland, prison cells are cold, bathrooms are in public view, and overall living conditions are poor. Prison B is a minimum-security prison. Prisoners are allowed out of their cells any time they desire. There are tennis courts and saunas, the food is flavorful, and overall living conditions are comfortable.”
In one version of the survey, participants were told that “Murderers who are sent to Prison A for 18 years are much more likely to commit a violent act once they return to society when compared to murderers who are sent to Prison B for 5 years.” In the other version, participants were told the reverse–that murderers who are sent to Prison B for 5 years are more likely to reoffend. To guarantee that participants avoided picking a prison sentence because they believed it promoted greater general deterrence, subjects were told that their “decision will not have any influence on whether other citizens besides Harry will commit crimes.”
Measures: The first two questions were “How serious was this crime?” and “How morally outraged were you by this offense?” Participants answered using a 7-point Likert scale ranging from 1 (Not at All) to 7 (Extremely). They were then asked how severely they would like to punish Harry using a 7-point Likert scale ranging from 1 (Not at All Severe) to 7 (Extremely Severe).
In order to ensure that only the description of the crime affected participants’ answers to these first three questions, the survey was split into two pages. The second page contained the description of the prisons, the ability to choose between the two given prison sentences, and an opportunity to explain why they chose the sentence they did.
37 people took Version 1 of the survey in which the harsher, 18-year sentence in Prison A was paired with a smaller chance of reoffending (harshness of punishment and recidivism rate are inversely related). The majority of test subjects, 87% (32/37), chose to sentence Harry to the 18-year sentence in Prison A.
51 people took Version 2 in which the gentler, 5-year sentence in Prison B was paired with a smaller chance of reoffending (harshness of punishment and recidivism rate are directly related). In this version, the majority of test subjects, 65% (33/51), chose to sentence Harry to the 5-year sentence in Prison B.
As expected, both versions saw nearly identical responses to the first three questions because test subjects were presented with the same vignette. However, participants who chose the harsh sentence in each version answered the third question (on punishment) with a higher score than those who selected the gentle sentence. The average results of every question asked can be seen in Figure 1.
|Prison Sentence Chosen||Q1 - How serious was this crime?||Q2 - How morally outraged were you by this offense?||Q3 - How severely would you like to punish?|
|Version 1||Harsh (N = 32)||μ=6.6, σ=0.6||μ=6.2, σ=1.2||μ=6.2, σ=1.0|
|Gentle (N = 5)||μ=6.6, σ=0.5||μ=6.2, σ=0.8||μ=5.4, σ=0.5|
|Version 2||Harsh (N = 18)||μ=6.6, σ=0.7||μ=6.5, σ=0.6||μ=6.4, σ=0.7|
|Gentle (N = 33)||μ=6.6, σ=0.6||μ=6.1, σ=1.3||μ=5.7, σ=1.5|
Analysis & Discussion
Version 1 of the survey was used to verify the assumption that people will overwhelmingly endorse a harsh punishment with a low recidivism rate. Of the five subjects (5/37) who chose otherwise, two ignored the given statistics about recidivism and wrote that Harry had a better chance of reforming in Prison B. One participant ignored the options given and came up with their own unique prison sentence in their written response. By removing these subjects, we find that 94% (32/34) of subjects chose a punishment that satisfied both retributivist and consequentialist motives.
In Version 2, the central research question is addressed. As predicted, most people (33/51) chose to give a punishment (5 years in Prison B) that satisfied consequentialist goals even if it meant sacrificing retributivist ones. One subject who chose a sentence of 18 years in Prison A ignored the given statistics about recidivism and wrote that Harry had a better chance of reforming in Prison A. By removing this subject, we find that 66% (33/50) of subjects chose a punishment that only makes sense from a utilitarian perspective. Additionally, three subjects who chose the more punitive sentence mentioned in their response that they would hope that Prison A works to create a better rehabilitation program.
Carlsmith was correct in his findings that, when people view a criminal act to be extremely serious and morally outrageous, they desire to punish that criminal severely. However, I have shown that when people are aware of the outcomes of punishments, most choose to punish in whatever way minimizes future harm to society and others.
In order to confirm this result, the experiment can be repeated using a vignette of a less serious, nonviolent crime. My prediction is that a story of this nature would produce a much smaller emotional response in participants, leading to a smaller desire to punish punitively, and an even larger majority of people choosing to punish on the basis of consequentialist principles.
It would also be wise to repeat this study on a demographically different group of people. The university students involved in this study (many from Harvard) may be more liberal than the general population and may have different intuitions about punishment.
The findings of this study show that retribution matters a lot less than what previous research has suggested. It would be extreme to say that everyone punishes with consequentialism in mind, but ultimately, it seems that the majority of people care less about seeing criminals get what they deserve and more about the effect a particular punishment has on future crime.
This is important for two reasons. First, if new information in neuroscience pushes us away from a retributivist theory of “punishment for the sake of punishment,” then it seems that we will be okay leaving retribution behind.
Second, it means that today, Americans are intuitively at odds with the current criminal justice system. It turns out that Prison B is a real prison: Bastøy Prison in Norway (Sutter, 2012). Every detail used in this study to describe Prison B truthfully describes Bastøy. It is a prison that rehabilitates more than it punishes. The recidivism rate of Bastøy is 16%, which is much lower than Norway’s overall 12-month recidivism rate of 30% (Nilsen, 2016, Skardhamar & Telle, 2012). Both of these rates are lower than the US 12-month recidivism rate of 43.4% (Durose et al., 2014).
If people desire a reduction of crime more than retribution, then today, society is punishing people the wrong way. American prisons should be more like Bastøy and less like Prison A. Rehabilitation should be prioritized over retribution. We should punish people in ways that produce the least amount of crime, and currently, we do not.
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(Original paper without the blog intro / Askell quote)
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