Criminology Commons^™

Undemocratic Crimes, Paul H. Robinson, Jonathan C. Wilt

All Faculty Scholarship

One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment. This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice and avoiding injustice. Moreover, there are compelling arguments for demanding consistency between community views and criminal law rules based upon the importance of democratic values, effective crime-control, and the deontological value of justice itself.

It may then come as a surprise, and a disappointment, that a wide range of common …

The Criminogenic Effects Of Damaging Criminal Law’S Moral Credibility, Paul H. Robinson, Lindsay Holcomb

All Faculty Scholarship

The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby …

Criminal Law’S Core Principles, Paul H. Robinson

All Faculty Scholarship

Modern criminal law scholars and policymakers assume they are free to construct criminal law rules by focusing exclusively on the criminal justice theory of the day. But this “blank slate” conception of criminal lawmaking is dangerously misguided. In fact, lawmakers are writing on a slate on which core principles are already indelibly written and realistically they are free only to add detail in the implementation of those principles and to add additional provisions not inconsistent with them. Attempts to do otherwise are destined to produce tragic results from both utilitarian and retributivist views.

Many writers dispute that such core principles …

A Truce In Criminal Law's Distributive Principle Wars?, Paul H. Robinson

All Faculty Scholarship

Crime-control utilitarians and retributivist philosophers have long been at war over the appropriate distributive principle for criminal liability and punishment, with little apparent possibility of reconciliation between the two. In the utilitarians’ view, the imposition of punishment can be justified only by the practical benefit that it provides: avoiding future crime. In the retributivists’ view, doing justice for past wrongs is a value in itself that requires no further justification. The competing approaches simply use different currencies: fighting future crime versus doing justice for past wrongs.

It is argued here that the two are in fact reconcilable, in a fashion. …

Villains, Morality, And Redemption: A Content Analysis Of Children’S Movies, Iqra Ishaq

Senior Honors Projects

Research on children’s movies has yielded important findings on messaging about gender, race, ethnicity, sexuality, (dis)ability, mental illness, aging, and even death. All of this research has recognized the important role children’s movies play in children’s upbringing and informal education. Not only do children’s movies reflect the commonly-held values of the time, but they impart these values to their audience. Children, as the target audience of these movies, are extremely susceptible to absorbing these values and messages.

My research examines what messages children’s movies impart about villains. It includes a content-analysis of 80 full-length animated movies released by Disney, DreamWorks, …

Pretrial Detention And Bail, Megan Stevenson, Sandra G. Mayson

All Faculty Scholarship

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who …

How Being Right Can Risk Wrongs, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

This is a chapter from the new book The Vigilante Echo. Previous chapters have made clear that some vigilantism can be morally justified where the government has failed in its promise under the social contract to protect and to do justice. But this chapter explains how even moral vigilante action can be problematic for the larger society. Vigilantes may try to do the right thing but are likely to lack the training and professional neutrality of police. They may be successful, but only on pushing the crime problem to an adjacent neighborhood. Because their open lawbreaking may seem admirable …

Shadow Vigilante Officials Manipulate And Distort To Force Justice From An Apparently Reluctant System, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

The real danger of the vigilante impulse is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways, by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the operation of the system in a host of important ways. For example, when people act as classic vigilantes …

The Moral Vigilante And Her Cousins In The Shadows, Paul H. Robinson

All Faculty Scholarship

By definition, vigilantes cannot be legally justified – if they satisfied a justification defense, for example, they would not be law-breakers – but they may well be morally justified, if their aim is to provide the order and justice that the criminal justice system has failed to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice system has adopted a wide range of criminal law …

Introduction To The Structure And Limits Of Criminal Law, Paul H. Robinson, Joshua Samuel Barton

All Faculty Scholarship

The book The Structure and Limits of Criminal Law (Ashgate) collects and reprints classic articles on three topics: the conceptual structure of criminal law doctrine, the conduct necessary and that sufficient for criminal liability, and the offender culpability and blameworthiness necessary and that sufficient for criminal liability. The collection includes articles by H.L.A. Hart, Sanford Kadish, George Fletcher, Herbert Packer, Norval Morris, Gordon Hawkins, Andrew von Hirsch, Bernard Harcourt, Richard Wasserstrom, Andrew Simester, John Darley, Kent Greenawalt, and Paul Robinson. This essay serves as an introduction to the collection, explaining how each article fits into the larger debate and giving …

Empirical Desert, Individual Prevention, And Limiting Retributivism: A Reply, Paul H. Robinson, Joshua Samuel Barton, Matthew J. Lister

All Faculty Scholarship

A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral …

Alchemy And Inquiry: Reflections On An Inside-Out Research Roundtable, Sarah Allred, Angela Bryant, Simone Weil Davis, Kurt Fowler, Phil Goodman, Jim Nolan, Lori Pompa, Barbara Sherr Roswell, Daniel L. Stageman

Publications and Research

In 2008, The Inside-Out Prison Exchange Program convened a Research Committee to (1) facilitate a collective, critical, and professional consciousness about social justice, crime, and incarceration through the exploration of the Inside-Out program pedagogy, impact, and effectiveness; (2) develop and encourage proposals for various types of research that focus on The Inside-Out Prison Exchange Program; and (3) establish ethical guidelines for inquiry that would meet and exceed the federal human subjects guidelines in research practices. In fall 2012, Research Committee members Sarah Allred, Angela Bryant, Phil Goodman, Kurt Fowler, Jim Nolan, Lori Pompa, and Dan Stageman joined with Simone Davis …

Phenomenological Theories Of Crime, Peter K. Manning, Michael W. Raphael

Graduate Student Publications and Research

The distinctive aspect of phenomenological theories of crime is that they are based upon a stated epistemology: how things are known and a specific ontology—the nature of social reality. This specificity aligns itself with neo-Kantian concern with forms of knowing, interpretation, and meaning, as well as with 20th-century concern with perception, cognition, and the framing of events. While there are influences of phenomenological thinking on varieties of theorizing, such as symbolic interactionism, critical theory, queer theory, and gender-based theories of crime, these ideas are refractions and are inconsistent in their reference to and understanding of the foundational phenomenological works. A …

Play Fair With Recidivists, Richard Dagger

Political Science Faculty Publications

Retributivists thus face a difficult challenge. Either we must go against the social grain, and perhaps our own intuitions, by insisting that a criminal offense carry the same penalty or punishment no matter how many previous convictions an offender has accrued; or we must find a way to justify the recidivist premium. I shall take the second route here by arguing that recidivism itself is a kind of criminal offense. In developing this argument, I shall rely on Youngjae Lee's insightful analysis of "recidivism as omission." I shall complement his analysis, however, by grounding it in a conception of criminal …

Playing Fair With Prisoners, Richard Dagger

Political Science Faculty Publications

Oddness aside, however, I think there is much to recommend the attempt to restore rehabilitation to a central place in the practice of punishment. Nor do I think that rehabilitation must displace retribution in that practice. Properly understood, the two aims are not only compatible but also complementary. If we are to understand them properly, though, we shall need to see them as components of a theory of punishment that is grounded in considerations of fair play. Such a theory also has the advantage of offering guidance with regard to other controversial matters of penal policy, such as the question …

How Porous Are The Walls That Separate Us?: Transformative Service-Learning, Women’S Incarceration, And The Unsettled Self, Coralynn V. Davis

Faculty Journal Articles

In this article, we refine a politics of thinking from the margins by exploring a pedagogical model that advances transformative notions of service learning as social justice teaching. Drawing on a recent course we taught involving both incarcerated women and traditional college students, we contend that when communication among differentiated and stratified parties occurs, one possible result is not just a view of the other but also a transformation of the self and other. More specifically, we suggest that an engaged feminist praxis of teaching incarcerated women together with college students helps illuminate the porous nature of fixed markers that …

Beyond Minority Report: Pre-Crime, Pre-Punishment And Pre-Desert, John N. Williams

Research Collection School of Social Sciences

Utilitarian ethics are apparently incommensurable with other ethical perspectives. Faced with a choice between maximizing general benefit to society and committing an act of injustice, those of us who reject utility in favor of justice are powerless to change the viewpoint of someone who rejects justice in favor of utility. Since there are no higher ethical principles that overarch both principles of utility and principles of justice, both sides must run out of reasons when deciding which principles should be put first. But the unreasoned decision is ineluctable, because there are possible cases in which the principles conflict.1 This kind …

Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach

All Faculty Scholarship

No abstract provided.

Interpretation's Contrapuntal Pathways: Addams And The Averbuch Affair, Marilyn Fischer

Philosophy Faculty Publications

In March 1908 the Chicago Police Chief shot Lazarus Averbuch, a young, Russian Jewish immigrant, claiming self-defense against an anarchist plot. Jane Addams refused to join the public's outcry of support for their chief, declaring that she had the obligation to interpret rather than denounce the incident. Her analysis of Averbuch's killing, given in her essay, ““The Chicago Settlements and Social Unrest,”” provides a focal point for seeing how interpretation functions as a unifying theoretical category for Addams, bringing together her activism, her style of writing, and her philosophy of social change. Addams's conception of interpretation is multi-faceted and dynamic; …

Jean Hampton’S Theory Of Punishment: A Critical Appreciation, Richard Dagger

Political Science Faculty Publications

Jean Hampton’s work first came to my attention in 1984, when the summer issue of Philosophy & Public Affairs appeared in my mailbox. Hampton’s essay in that issue, “The Moral Education Theory of Punishment,” did not persuade me—or many others, I suspect—that “punishment should not be justified as a deserved evil, but rather as an attempt, by someone who cares, to improve a wayward person” (Hampton 1984, 237). The essay did persuade me, though, that moral education is a plausible aim of punishment, even if it is not the “full and complete justification” Hampton claimed it to be (Hampton 1984, …

Republicanism And The Foundations Of Criminal Law, Richard Dagger

Political Science Faculty Publications

This chapter makes a case for the republican tradition in political philosophy as a theory that can provide a rational reconstruction of criminal law. It argues that republicanism offers a reconstruction of criminal law that is both rational and plausible. In particular, it shows that republicanism can help us to make sense of three important features of criminal law: first, the conviction that crime is a public wrong; second, the general pattern of development of criminal law historically; and third, the public nature of criminal law as a cooperative enterprise. To begin, however, it explains what republicanism is and why …

Provocation Manslaughter As Partial Justification And Partial Excuse, Mitchell N. Berman, Ian Farrell

All Faculty Scholarship

The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. It traces back to the twelfth century, and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal law theorists. The dominant scholarly view holds that provocation is best explained and defended …

Mercy, Crime Control, And Moral Credibility, Paul H. Robinson

All Faculty Scholarship

If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not. Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense. Desert is a nuanced and rich concept that takes account of a wide variety of factors. The more a writer misperceives desert as wooden and objective, the more …

The Myth Of The Fully Informed Rational Actor, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

The Disutility Of Injustice, Paul H. Robinson, Geoffrey P. Goodwin, Michael Reisig

All Faculty Scholarship

For more than half a century, the retributivists and the crime-control instrumentalists have seen themselves as being in an irresolvable conflict. Social science increasingly suggests, however, that this need not be so. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision – the only amendment to the Model Code in the 47 years since its promulgation – adopts desert as the primary distributive principle for criminal liability and punishment. That shift to desert has prompted concerns by two …

Restoration But Also More Justice, Stephanos Bibas

All Faculty Scholarship

This short essay replies to Erik Luna's endorsement of restorative justice. He is right that the goal of healing victims, defendants, and their families is important but all too often neglected by substantive criminal law and procedure, which is far too state-centered and impersonal. The problem with restorative justice is that too often it seeks to sweep away punishment as barbaric and downplays the need for deterrence and incapacitation as well. In short, restorative justice deserves more of a role in American criminal justice. Shorn of its political baggage and reflexive hostility to punishment, restorative justice has much to teach …

Time Out, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Policing Politics At Sentencing, Stephanos Bibas, Max M. Schanzenbach, Emerson H. Tiller

All Faculty Scholarship

No abstract provided.

Exacerbating Injustice, Stephanos Bibas

All Faculty Scholarship

This brief essay responds to Josh Bowers' argument that criminal procedure should openly allow innocent defendants to plead guilty as a legal fiction. Though most scholars emphasize the few but salient serious felony cases, Bowers is right to refocus attention on misdemeanors and violations, which are far more numerous. And though the phrase wrongful convictions conjures up images of punishing upstanding citizens, Bowers is also right to emphasize that recidivists are far more likely to suffer wrongful suspicion and conviction. Bowers' mistake is to treat the criminal justice system as simply a means of satisfying defendants' preferences and choices. This …

Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz

All Faculty Scholarship

What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the …