Blame, Accountability, Criminalization

My amazing day at CELS ended with two papers about assigning criminal accountability and criminalizing, which were particularly thought provoking in the respective aftermaths of the Mehserle trial and the failure of Prop 19. First came Janice Nadler and Mary‐Hunter Morris’ paper The Psychology of Blame: Criminal Liability and the Role of Moral Character. Nadler and Morris conducted a series of fascinating experiments in which respondents were required to express their views on criminal culpability and causality in scenarios they were provided with; respondents were provided with some background about the offenders’ moral character, and Nadler and Morris concluded that this extraneous information colored their opinion regarding culpability. The questions from the audience yielded an excellent discussion about the situations in which moral character “leaks” into the legitimate justice system, such as in discussing an offender’s motive.

The following paper was The Plasticity of Harm: An Experimental Demonstration of the Malleability of Judgments in the Service of Criminalization, by Avani Mehta Sood and John M. Darley. Sood and Darley provided their respondents with a series of rather colorful scenarios, asking them whether they saw them as violating social norms, whether they were harmful, and whether they would criminalize them. Respondents tended to ascribe harm to situations they wanted to criminalize. Sood and Darley then proceeded to provide respondents with scenarios that did not tend to invoke a lot of harm rationales, priming half of them with an instruction according to which “U.S. courts have ruled that for something to be a crime it has to cause harm.” Respondents that were primed with this instruction tended to come up with more harm rationales for their scenarios, some of them rather creative and farfetched. The paper reminded me of the harm arguments brought up against Prop 19, and the amount of pseudo-harm arguments we have heard, and are likely to continue hearing, about same-sex marriage.

CELS is a fantastic conference, I learned a lot and had a terrific time. Now, it’s back to my students and… to the California correctional crisis.