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.

Retributivism and Restorative Justice

The afternoon panels at CELS also featured wonderful work. First I heard Dena Gromet and John Darley’s paper Gut reactions to Criminal Wrongdoing: The Role of Political ideology. In the paper, Gromet and Darley examine whether people’s support for a retributive or restorative framework depends on reason considerations, or whether it is a gut reaction. To measure that, they conducted a survey in which they asked respondents’ opinions on victims and on offenders, assessing their support for each framework. They also inquired about their political opinion (on a conservative to liberal scale). To measure gut reactions, rather than calm reasoning, they asked respondents these questions under cognitive load (made them memorize an 8-digit number while they responded). They found that the satisfaction with restoration, whether on its own or as added to satisfaction with retributivism, goes up for liberals and down for conservatives with cognitive load. Their conclusion was, therefore, that liberals and conservatives have different intuitive reactions to serious crime: Liberals endorse restoration while conservatives favor retribution.

This paper was followed by Tyler G. Okimoto, Michael Wenzel and N.T. Feather’s paper Conceptualizing Retributive and Restorative Justice. Drawing on differences in conception of justice, Okimoto, Wenzel and Feather administered a survey in which they asked respondents a series of question to establish the extent to which they subscribed to two alternative views of justice: the need to empower the victim and degrade the offender, versus the need to heal relationships and reassert consensual social values. They generated a scale that allows measuring where respondents lie along a spectrum of retributive to restorative justice.

Re-Entry, Housing, and the Job Market

I am at the 5th Conference on Empirical Legal Studies at Yale University, and have heard two interesting presentations on re-entry.

Amanda Geller and Marah Curtis’ paper A Sort of Homecoming: Incarceration and the Housing Security of Urban Men compares the housing status of previously incarcerated and non-incarcerated fathers in fragile, poor families. Using a database formed for studying fragile families, Geller and Curtis compare how fathers fare during their child’s infancy in terms of housing. As measures of housing, they use not only eviction, but also other measures mortgage default and living with others. They find that formerly incarcerated fathers have more trouble finding a stable housing situation, and while some of this difficulty is attributed to lack of income, it does not explain away all the difficulty.

Charles Loeffler’s paper The Effects of Imprisonment on Labor Market Participation: Evidence from a Natural Experiment compares the job status of convicted people who were sentenced by high-incarceration and low-incarceration judges. Suprisingly, Loeffler finds that the former tend to fare better in the job market–but only temporarily. This finding might be explained in three main ways: Parole agents do a better job than, say, probation officers in finding jobs for formerly incarcerated people (but not good enough to provide enduring employment); incarceration breaks inmates’ ties to their former environment and therefore requires them to shift to the “covered” economy; or, inmates simply age out of crime while in prison.