Social Psychology on Punishment - Dictionary of Arguments
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Punishment/Social Psychology/Nadler/Mueller: In the absence of compelling evidence to prove guilt, juries sometimes use the fact of the defendant's prior criminal record as a reason to convict (T. Eisenberg and Hans, 2009(1)). This is especially true when
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the prior crimes are similar to the current accusation (Greene and Dodge, 1995(2); Lloyd-Bostock, 2000(3); Wissler and Saks, 1985(4)).
Perception: When perceiving persons, we immediately decide whether their intentions toward us are good, and how competent they are to carry out their intentions (Fiske, Cuddy, and Glick, 2007)(5). We also use that information to make decisions about how blameworthy an actor is. Inferences about character drive judgments of responsibility, blame, and even causation (Alicke, 1992(6), 2000(7); Alicke and Yurak 1995(8). Nadler, 2012(9); Nadler and McDonnell, 2012(10)).
Personality traits: Bad motives are one source of inferring bad character, but they are not necessary. Even mildly negative personality traits spur inferences about character that influence blame judgments. For example, a woman who carelessly fails to supervise her unruly dogs is blamed more for an ensuing death if she is asocial and has an unhealthy lifestyle, compared to if she is highly social and has a healthy lifestyle (Nadler and McDonnell, 2012)(10).
Victims: The moral character of victims can also influence blame judgments. Harm to innocent victims induces more blame than harm to dangerous criminals, or victims perceived as tainted in other ways. Thus, for example, a person who shoots a stranger in his house is blamed more when the victim turns out to be his daughter's boyfriend than when the victim is a burglar, even when holding constant the shooter's perceptions of danger (Alicke, Davis, and Pezzo, 1994)(11).
Moral character: A woman's allegedly questionable moral character (e.g. drinking, drug use, premarital sex, respectability) disadvantages her throughout the justice process and leads to more victim blaming as well as lighter punishment (Burt and Albin, 1981(12); C. Jones and Aronson, 1973(13)). If they question a woman's moral character, prosecutors are less likely to file charges in the first place (Spohn et al., 2001)(14). Additionally, convictions are less likely and sentences are shorter when a woman's sexual history is mentioned, even if she is relatively inexperienced (L'Armand and Pepiton, 1982)(15).
>Apologies/Social Psychology, >Attractiveness/Social Psychology, >Retribution/deterrence/Social Psychology.
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Rules/social status: Expressive theories of punishment posit that punishment communicates rules and social norms (Duff, 2011(16); Durkheim, 2014(17)), and sends a message to victims, offenders, and third parties alike, which announces and corrects the wrong that was committed. Thus, criminal punishment involving identifiable victims can function as a device that communicates how valued and respected the victim is (Hampton, 1988(18); 1994(19)). Punishment can serve to reset the status quo by expressing that the victim is valuable enough to justify the spending of resources to detect, prosecute, and punish the offender who has harmed her (Bilz, 2014). Bilz (2014) has shown experimentally that both victims and third parties perceive punishment as raising the victim's social standing, and failure to punish as lowering it.
1. Eisenberg, T. and V. Hans (2009). "Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes." Cornell Law Review 94: 1353.
2. Greene, E. and M. Dodge (1995). "The Influence of Prior Record Evidence on Juror Decision
Making." Law and Human Behavior doi:10.1007/BF01499073.
3. Lloyd-Bostock, S. (2000). " The Effects on Juries of Hearing about the Defendant's Previous
Criminal Record: A Simulation Study." Criminal Law Review 1:734-755.
4. Wissler, R. L. and M. J. Saks (1985). "On the Ineffcacy of Limiting Instructions: When Jurors
Use Prior Conviction Evidence to Decide on Guilt." Law and Human Behavior 9(1): 37-48.
5. Fiske, S. T., A. J. C. Cuddy, and P. Glick (2007). "Universal Dimensions of Social Cognition: Warmth and Competence." Trends in Cognitive Sciences 1 1 (2):77—83. doi:16/
6. Alicke, M. D. (1992). "Culpable Causation." Journal of Personality and Social Psychology
63(3): 368-378. doi:10.1037/0022-35126.96.36.1998.
7. Alicke, M. D. (2000). "Culpable Control and the Psychology Of Blame." Psychological Bulletin
126(4): 556-574. doi:10.1037/0033-2909.126.4.556.
8. Alicke, M. D. and T. J. Yurak (1995). "Perpetrator Personality and Judgments of Acquaintance Rape“.Journal of Applied Social Psychology 25(21):1900-1921.
9. Nadler, J. (2012). "Blaming as a Social Process: The Influence of Character and Moral Emo-
tion on Blame." Law and Contemporary Problems 75: 1.
10. Nadler, J. and M.-H. McDonnell (2012). "Moral Character, Motive, and the Psychology of
Blame." Cornell Law Review 97:255.
11. Alicke, M. D., T. L. Davis, and M. V. Pezzo (1994). "A Posteriori Adjustment of A Priori Decision Criteria." Social Cognition 12(4):281-308.
12. Burt, M. R. and R. S. Albin (1981). "Rape Myths, Rape Definitions, and Probability of Conviction.“ Journal of Applied Social Psychology 11(3):212-230.
13. Jones, C. and E. Aronson (1973). "Attribution of Fault to a Rape Victim as a Function of
Respectability of the Victim." Journal of Personality and Social Psychology 26(3): 415-419. doi:10.1037/h0034463.
14. Spohn, C., D. Beichner, E. D. Frenzel, and D. Holleran (2001). Prosecutors' Charging Decisions
in Sexual Assault Cases: A Multi-Site Study, Final Report (No. 197048). National Institute
15. L'Armand, K. and A. Pepitone (1982). "Judgments of Rape A Study of Victim-Rapist Relationship and Victim Sexual History." Personality and Social Psychology Bulletin 8(1): 134-139. doi:10.1177/014616728281021.
16. Duff, A. (2011). "Retrieving Retributivism," in M. D. White, ed., Retributivism: Essays on
Theory and Policy, 3-24. New York: Oxford University Press.
17. Durkheim, E. (2014). The Division of Labor in society. New York: Simon and Schuster.
18. Hampton, Jean (1988). "Punishment as Defeat," in Jeffrie G. Murphy and Jean Hampton,
eds., Forgiveness and Mercy, 124—132. Cambridge: Cambridge University Press, Cam-
19. Hampton, Jean (1994). "Retribution and the Liberal State." J. Contemp. Legal Issues 5: 117.
Nadler, Janice and Pam A. Mueller. „Social Psychology and the Law“. In: Parisi, Francesco (ed) (2017). The Oxford Handbook of Law and Economics. Vol 1: Methodology and Concepts. NY: Oxford University Press_____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Francesco Parisi (Ed)
The Oxford Handbook of Law and Economics: Volume 1: Methodology and Concepts New York 2017