Unfair

by Adam Benforado

  Likewise, by the mandate: Exodus 21:28 (King James). Interestingly, death by stoning was a special type of sentence reserved for the most egregious type of crimes and expressing the particular moral outrage of the offense. Goodwin and Benforado, “Judging the Goring Ox,” 4; J. J. Finkelstein, “The Ox That Gored,” Transactions of the American Philosophical Society 71, no. 2 (1981).

  Many of the recorded examples: Goodwin and Benforado, “Judging the Goring Ox, 4.”

  And should the tribe fail: Sir James George Frazer, “The Ox That Gored,” in Folk-Lore in the Old Testament, vol. 3 (London: Macmillan, 1919), 415–16; John Macrae, “Account of the Kookies of Lunctas,” Asiatic Researches 7 (1803): 189. I’ve added italics to emphasize a particularly interesting facet of the quotation: if the actual perpetrator is not caught, a stand-in perpetrator must be found and killed.

  It is tempting to write off: Esther Cohen, “Law, Folklore, and Animal Lore,” Past and Present 110 (1986); Evans, The Criminal Prosecution; Hans Kelsen, General Theory of Law and State, trans. A. Wedberg (New York: Russell & Russell, 1945), 91.

  An ox lacks many: Goodwin and Benforado, “Judging the Goring Ox, 3, 5, 22-23.”

  To suppose otherwise is: Parker-Harris Co. v. Tate, 188 S.W. 54, 55 (Tenn. 1916). The court provided the ox cart example in the context of a discussion of “deodand,” which historically was any personal property “whatever, animate or inanimate, which, becoming the immediate instrument by which the death of a human creature was caused, was forfeited to the king, for sale and a distribution of the proceeds in alms to the poor by his high almoner, ‘for the appeasing of God’s wrath’….” Parker-Harris Co., 188 S.W. at 55.

  At the same time that: “Kentucky Dog Murder Trials Held Repealed,” Washington Post, January 25, 1929.

  In 1918, Kentucky had passed: “Kentucky Dog Murder Trials Held Repealed.”

  But the courts were slow: “Kentucky Jury Convicts Dog: Death Sentence Carried Out,” New York Times, January 11, 1926.

  When Bill, a collie, was: “Kentucky Jury Convicts Dog”; “Condemned Dog Faces Kentucky Court Today,” New York Times, January 16, 1928.

  Which helps explain why: “Condemned Dog Faces Kentucky Court Today.”

  Thanks—perhaps—to his royal: “Condemned Dog Faces Kentucky Court Today.”

  And although convicted three: “Animals: Kaiser Bill,” Time, November 18, 1929, http://content.time.com/​time/magazine​/article/0,9171,738059,00.html.

  Interestingly, it was not: “Condemned Dog Faces Kentucky Court Today.”

  It was, she explained: “Condemned Dog Faces Kentucky Court Today.”

  A surfer is dragged underwater: Oliver Milman, “Shark Attacks Prompt Calls to Review the Great White’s Protected Status,” Guardian, July 16, 2012, http://​www.guardian.co.uk/​environment/2012/jul​/16/marine-life-wildlife.

  A grizzly bear attacks: Jessica Grose, “A Death in Yellowstone,” Slate, April 2, 2012, http://www.slate.com/​articles/health_and_science/death_in_yellowstone/2012​/04/grizzly_bear_attacks_how_wildlife_investigators_found_a_killer_grizzly_in_yellowstone_​.single.html; Scott Streater, “Yellowstone Bear Euthanized After DNA Evidence Links Two Fatal Attacks,” New York Times, October 7, 2011, http://www.nytimes.com/​gwire/​2011/10/07/07greenwire-yellowstone​-bear-euthanized-after-​dna-evidence-52234.html?pagewanted=all.

  When it comes to morality: Eyal Aharoni and Alan J. Fridlund, “Punishment Without Reason: Isolating Retribution in Lay Punishment of Criminal Offenders,” Psychology, Public Policy, and Law 18, no. 4 (2012): 4.

  And when I press you: Aharoni and Fridlund, “Punishment Without Reason,” 5.

  But did those reasons lead you: Aharoni and Fridlund, “Punishment Without Reason,” 5; Peter H. Ditto, David A. Pizarro, and David Tannenbaum, “Motivated Moral Reasoning,” in Moral Judgment and Decision Making, ed. Daniel M. Bartels et al. (Burlington, VT: Academic Press, 2009).

  The best available evidence suggests: Kevin M. Carlsmith and John M. Darley, “Psychological Aspects of Retributive Justice,” Advances in Experimental Psychology 40 (2008): 213. For an interesting overview, see Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Pantheon, 2012).

  In one famous experiment: Jonathan Haidt, Frederick Björklund, and Scott Murphy, “Moral Dumbfounding: When Intuition Finds No Reason” (unpublished manuscript, August 10, 2000); Jonathan Haidt, “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment,” Psychological Review 108, no. 4 (2001): 814, doi: 10.1037/0033-295X.108.4.814; Aharoni and Fridlund, “Punishment Without Reason,” 5–6.

  The trick was that: Haid, Björklund, and Murphy, “Moral Dumbfounding,” 18; Haidt, “The Emotional Dog and Its Rational Tail,” 814; Aharoni and Fridlund, “Punishment Without Reason,” 5–6.

  In the incest scenario: Haid, Björklund, and Murphy, “Moral Dumbfounding,” 18; Haidt, “The Emotional Dog and Its Rational Tail,” 814; Aharoni and Fridlund, “Punishment Without Reason,” 5–6.

  In addition, the incest never: Haid, Björklund, and Murphy, “Moral Dumbfounding,” 18; Haidt, “The Emotional Dog and Its Rational Tail,” 814; Aharoni and Fridlund, “Punishment Without Reason,” 5–6.

  Study participants were quick to: Haid, Björklund, and Murphy, “Moral Dumbfounding,” 3, 9; Haidt, “The Emotional Dog and Its Rational Tail,” 814; Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 212.

  Even when they ran out: Aharoni and Fridlund, “Punishment Without Reason,” 5–6; Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 212.

  Even our moral decision-making: Aharoni and Fridlund, “Punishment Without Reason,” 5–6; Haidt, “The Emotional Dog and Its Rational Tail,” 814. For interesting fMRI evidence supporting the role of emotional processes in moral judgment, see Joshua D. Greene et al., “The Neural Bases of Cognitive Conflict and Control in Moral Judgment,” Neuron 44, no. 2 (2004): 389–400, doi: 10.1016/j.neuron.2004.09.027; Joshua D. Greene et al., “An fMRI Investigation of Emotional Engagement in Moral Judgment,” Science 293, no. 5537 (2001): 2105–08, doi: 10.1126/science.1062872.

  It is worth noting that my coauthor Geoff believes that models of moral judgment that emphasize the powerful influence of emotion and intuition are substantially overstated. He would argue for a greater role for reflection and reasoning in moral judgment than I would, although we agree that both are important components. My own position is that intuition is likely primary and almost certainly underestimated by those outside of psychology departments. For readers interested in research focused on reasoning in moral judgment, see Monica Bucciarelli, Sangeet Khemlani, and Philip N. Johnson-Laird, “The Psychology of Moral Reasoning,” Judgment and Decision Making 3, no. 2, (2008): 121–39; Joseph M. Paxton and Joshua D. Greene, “Moral Reasoning: Hints and Allegations,” Topics in Cognitive Science 2, no. 3 (2010): 511–27; Bertram F. Malle, Steve Guglielmo, and Andrew E. Monroe, “A Theory of Blame,” Psychological Inquiry: An International Journal for the Advancement of Psychological Theory 25, no. 2 (2014): 147–86, doi: 10.1080/1047840X.2014.877340; David A. Pizarro and Paul Bloom, “The Intelligence of the Moral Intuitions: Comment on Haidt (2001),” Psychological Review 110 (2003): 193–96; Paul Bloom, Just Babies: The Origins of Good and Evil (New York: Crown, 2013).

  In these moments: Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 212; Haidt, “The Emotional Dog and Its Rational Tail.”

  We arrive at a destination: Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 212–13; Haidt, “The Emotional Dog and Its Rational Tail,” 817; Haidt, The Righteous Mind.

  There are several potential: Aharoni and Fridlund, “Punishment Without Reason,” 2. For an overview of various theories of punishment, see Joshua Dressler, Understanding Criminal Law, 6th ed. (LexisNexis, 2012), 14–23.

  When asked, people tend to: Carlsmith and Darley, “Psychological Aspects of Retributive Justi
ce,” 211.

  But these self-reports don’t: Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 213.

  Regrettably, that question is hard: Goodwin and Benforado, “Judging the Goring Ox,” 2–3, 5-7.

  But people should also feel: Goodwin and Benforado, “Judging the Goring Ox,” 2–3, 5-7.

  So varying the gravity: Goodwin and Benforado, “Judging the Goring Ox,” 2–3, 5-7.

  That was exactly the dilemma: Goodwin and Benforado, “Judging the Goring Ox, 2–3, 5-7.”

  When we hunt down: Goodwin and Benforado, “Judging the Goring Ox, 3, 8.”

  So we can effectively: Goodwin and Benforado, “Judging the Goring Ox,” 3.

  Eliminating the possibility that: Goodwin and Benforado, “Judging the Goring Ox,” 15, 20.

  In one, a shark attacks: Goodwin and Benforado, “Judging the Goring Ox,” 17.

  The shark has been hunted: Goodwin and Benforado, “Judging the Goring Ox,” 15.

  How much of a numbing agent: Goodwin and Benforado, “Judging the Goring Ox,” 15.

  If your motivation is ensuring: Goodwin and Benforado, “Judging the Goring Ox,” 15, 20.

  But your answer should change: Goodwin and Benforado, “Judging the Goring Ox,” 18–19.

  Sure enough, that’s what Geoff and I: Goodwin and Benforado, “Judging the Goring Ox,” 18–19.

  We can alter the types: Goodwin and Benforado, “Judging the Goring Ox,” 19–23.

  People are driven by retribution: Goodwin and Benforado, “Judging the Goring Ox,” 19–24.

  On a purely rational level: Goodwin and Benforado, “Judging the Goring Ox,” 20.

  But our true intentions: Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 211; Kevin M. Carlsmith and Avani Mehta Sood, “The Fine Line between Interrogation and Retribution,” Journal of Experimental Psychology (2008): 191, doi: 10.1016/j.jesp.2008.08.025.

  Indeed, there is a growing: Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 215, 233; Anna-Kaisa Newheiser, Takuya Sawaoka, and John F. Dovidio, “Why Do We Punish Groups? High Entitativity Promotes Moral Suspicion,” Journal of Experimental Social Psychology 48 (2012): 931; Aharoni and Fridlund, “Punishment Without Reason,” 2; Fiery Cushman, “Punishment in Humans: From Intuitions to Institutions,” Philosophy Compass 10 (2015): 118, doi: 10.1111/phc3.12192. For examples of the experimental research suggesting that retribution is the primary motive for punishment, see Kevin M. Carlsmith, John M. Darley, and Paul H. Robinson, “Why Do We Punish? Deterrence and Just Deserts as Motives for Punishment,” Journal of Personality and Social Psychology 83, no. 2 (2002): 284–99, doi: 10.1037/0022-3514.83.2.284; John M. Darley, Kevin M. Carlsmith, and Paul H. Robinson, “Incapacitation and Just Deserts as Motives for Punishment,” Law and Human Behavior 24, no. 6 (2000): 659–83, doi: 10.1023/A:1005552203727; Robert E. Harlow, John M. Darley, and Paul H. Robinson, “The Severity of Intermediate Penal Sanctions: A Psychophysical Scaling Approach for Obtaining Community Perceptions,” Journal of Quantitative Criminology 11 (1995): 71–95, doi: 10.1007/BF02221301; Robert M. McFatter, “Purposes of Punishment: Effects of Utilities of Criminal Sanctions on Perceived Appropriateness,” Journal of Applied Psychology 67, no. 3 (1982): 255–67, doi: 10.1037/0021–9010.67.3.255; Derek D. Rucker et al., “On the Assignment of Punishment: The Impact of General-Societal Threat and the Moderating Role of Severity,” Personality and Social Psychology Bulletin 30, no. 6 (2004): 673–84, doi: 10.1177/0146167203262849; Tom R. Tyler and Robert J. Boeckmann, “Three Strikes and You Are Out, But Why? The Psychology of Public Support for Punishing Rule Breakers,” Law and Society Review 31, no. 2 (1997): 237–65, doi:10.2307/3053926; Mark Warr, Robert F. Meier, and Maynard L. Erickson, “Norms, Theories of Punishment, and Publicly Preferred Penalties for Crimes,” The Sociological Quarterly 24 (1983): 75–91. doi: 10.1111/j.1533–8525.1983.tb02229.x. It is worth noting that some of the research in this area rests on faulty methodology, as Geoff and I have shown (see the first study in Goodwin and Benforado, “Judging the Goring Ox,” 2–3, 5–7), so further investigation is warranted.

  In their view, this is only: Carlsmith and Darley, “Psychological Aspects of Retributive Justice,” 215, 233. Other psychologists are skeptical of this model of moral judgment. See, e.g., Malle, Guglielmo, and Monroe, “A Theory of Blame.”

  We’ve worked, for instance: For instance, the Model Penal Code—an influential template developed to help modernize and standardize penal law across the United States—treats many attempted crimes the same as accomplished crimes. Dressler, Understanding Criminal Law, 412.

  To hold someone responsible: Dressler, Understanding Criminal Law, 117.

  But starting in the thirteenth: Dressler, Understanding Criminal Law, 117.

  Voluntarily swinging the ax: Dressler, Understanding Criminal Law, 85.

  As the esteemed judge: Oliver Wendell Holmes, The Common Law (Boston: Little, Brown, 1881), 2; Dressler, Understanding Criminal Law, 120.

  The requirement, in the words: Morissette v. United States, 342 U.S. 246, 251 (1952); Dressler, Understanding Criminal Law, 117.

  Of course, different legal systems: The Royal Society, Brain Waves Module 4: Neuroscience and the Law (London: The Royal Society, December 2011), 13.

  In England, for example: The Royal Society, Brain Waves Module 4, 13 n. 26. The Convention on the Rights of the Child specifically charges countries with setting a minimum age “below which children shall be presumed not to have the capacity to infringe the penal law.” “Old Enough to Be a Criminal?,” UNICEF, accessed May 27, 2014, http://www.unicef.org/​pon97/p56a.htm.

  Although state practice varies: “The Infancy Defense,” The ’Lectric Law Library, accessed May 27, 2014, http://www.​lectlaw.com/​mjl/​cl032.htm.

  As we saw earlier: Roper v. Simmons, 543 U.S. 551, 551 (2005); Adam Liptak, “Justices Bar Mandatory Life Sentences for Juveniles,” New York Times, June 25, 2012, http://www.nytimes​.com/​2012/06/26/us/justices-bar-mandatory​-life-sentences-for-juveniles​.html?hp&_r=0&gwh=5BFD4CE723571FCE5BBBB753D40EBE7D​&gwt=pay.

  The juvenile court system itself: Rachel Aviv, “No Remorse,” New Yorker, January 2, 2012, 57.

  As Benjamin Lindsey, a pioneering: Aviv, “No Remorse,” 57.

  Likewise, no matter how heinous: Atkins v. Virginia, 536 U.S. 304, 304 (2002); Roper, 543 U.S. 551, 568–69; Dressler, Understanding Criminal Law, 333–59.

  Perceived blameworthiness does track: Adam Benforado and Geoff Goodwin, Unpublished Experiment.

  But these judgments are sensitive: Benforado and Goodwin, Unpublished Experiment.

  People believe that a boy: Benforado and Goodwin, Unpublished Experiment.

  If through pure chance: Benforado and Goodwin, Unpublished Experiment.

  What’s more, on average: Benforado and Goodwin, Unpublished Experiment.

  Indeed, people punish the unlucky: Although no harm came to the passengers of the car in the “harmless” condition, it is worth noting that we tried to ensure that the action of the boy was identical, so in both cases the bottle that he threw smashed the windshield of the vehicle. Benforado and Goodwin, Unpublished Experiment. For more on the psychology of “moral luck,” see Fiery Cushman, “Crime and Punishment: Distinguishing the Roles of Causal and Intentional Analyses in Moral Judgment,” Cognition 108 (2008): 353–80.

  In this context, it is hardly: Aviv, “No Remorse,” 57.

  And it is entirely expected that: Some states have appeared to react to the Supreme Court’s rulings in good faith—California foremost among them. Erik Eckholm, “Juveniles Facing Lifelong Terms Despite Rulings,” New York Times, January 19, 2014, http://www.nytimes.com/​2014/01​/20/us/juveniles​-facing-lifelong-terms​-despite-rulings.html?_r=1.

  Our hidden drives help explain: Erik Eckholm, “Juveniles Facing Lifelong Terms.” In other cases, legislators have responded by enacting strong new mandatory minimums—twenty-five or more years before parole be
comes an option—for juveniles who commit murder. Eckholm, “Juveniles Facing Lifelong Terms.”

  We profess not to blame: Dressler, Understanding Criminal Law, 350.

  If our moral processing always: Cory J. Clark et al., “Free to Punish: A Motivated Account of Free Will Belief,” Journal of Personality and Social Psychology 106, no. 4 (2014): 502.

  But we often seem to be: Clark et al., “Free to Punish,” 502. So, why are we driven to punish in the first place? Evolutionary psychologists suggest that the shared desire to blame and punish those who have committed wrongs provided a fitness benefit in a complex social world in which the danger of others taking harmful action was ever present. Clark et al., “Free to Punish,” 502–03; Paul H. Robinson, Robert Kurzban, and Owen D. Jones, “The Origins of Shared Intuitions of Justice,” Vanderbilt Law Review 60 (2007): 1633.

  We want to hold someone: Clark et al., “Free to Punish,” 501, 508; Mark D. Alicke, “Culpable Control and Psychology of Blame,” Psychological Bulletin 126 (2000): 556–74; Joshua Knobe, “Intentional Action and Side Effects in Ordinary Language,” Analysis 63 (2003): 190–94; Elaine Walster, “Assignment of Responsibility for an Accident,” Journal of Personality and Social Psychology 3 (1996): 73–79.

  That is strange indeed: Clark et al., “Free to Punish,” 508.

  Studies show that when: Azim F. Shariff et al., “Free Will and Punishment: A Mechanistic View of Human Nature Reduces Retribution,” Psychological Science 25 (2014): 1568–69; Clark et al., “Free to Punish,” 502; Lisa G. Aspinwall, Teneille R. Brown, and James Tabery, “The Double-Edged Sword: Does Biomechanism Increase or Decrease Judges’ Sentencing of Psychopaths?” Science 337, no. 6096 (August 2012): 846–49, doi: 10.1126/science.1219569; John Monterosso, Edward B. Royzman, and Barry Schwartz, “Explaining Away Responsibility: Effects of Scientific Explanation on Perceived Culpability,” Ethics and Behavior 15 (2005): 139–58, doi: 10.1207/s15327019eb1502_4.