Retribution As Ancient Artifact and Modern

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* ...... 1355 nsequences of objectives retributivist ...... 1358 1358 ...... TIFACT AND MODERN MALADY MALADY MODERN AND TIFACT by 1339 1339 ...... 1348 1348 ...... 1349 Molly J. Walker Wilson Walker J. Molly sponse to witnessing social transgressions. Evidence Evidence transgressions. social witnessing to sponse E. The Emotion-Action Connection Emotion-Action The E. D. Retribution for Basis The Emotional C. C. Behavior of Punishing Studies Psychological B. The Utilitarian Goal A. The Retribution Goal Retribution A. The judgment in contemporary society. This Articlejudgment employs in contemporary scientific findingsand theory several from disciplines to explore the origin of moral out- function and rage, before examining maladaptive co the in modern times. Ultimately, all evidence suggests that retribution is an an- Ultimately, is an retribution allin modern suggests evidence that times. harm- for foundation a create to serving only evolution human of artifact cient a legitimate considered be longer no should retribution such, As ful policies. punishment goal. is a worthwhile goal, regardless of any other benefits or harms that may result. result. may that harms or benefits other of any regardless goal, a worthwhile is punitive increasingly for policies justification the been has the Retribution in strapped of color, communities decimated has of which effect the States, United It is difficult increased crime rates. costs, and associated taxpayers with huge towe why perpetuate understand harmful policies based on “just deserts” until of outrage—athe powerful, policies foundation these we consider that is moral re compelling automatic, has re- anthropology and psychology, science, brain biology, from evolutionary vealed theoutrage role in promoting moral of social cooperation among early with shares commonalities outrage Moral expanded. groups as social humans have scientists behavioral that shortcuts or mental heuristics, cognitive other behave to identifiedhumansleading irrationally. automatic While these as poor lead to can adaptive function, they servedhistorically an responses have One of oldestthe and most entrenchedgoals retribution, punishment of is wrongwhich a committed inflictinghas idea is the pain on who that someone M K RETRIBUTION AS ANCIENT AR AS ANCIENT RETRIBUTION III. III. 1360 ...... Artifact Evolutionary an as Retribution II. II. 1347 ...... Behavior Human and Punishment of Theories I. Introduction ...... 1341 1341 ...... Introduction I. * Professor of Law and Psychology, Saint Louis University School of Law.

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M K C Y 1388 1388 1389 1389 1390 1392 1392 1393 1390 1394 1394 1395 1395 1391 1398 1398 . 139 ...... ...... 1408 1408 ...... 1397 ...... 1400 ...... 1363 ...... 1377 ...... 1406 ...... 1405 ...... 1380 1380 ...... 1372 ...... ...... 1381 ...... 1367 ...... 1383 ...... 1370 ...... 1392 1392 ...... 1395 1395 ...... 1388 g Bias ...... g Bias ...... 1373 Perseverance 2...... Priming 1...... Framing 3...... Availability Cognitive 4...... Anchoring 1...... Bias Confirmation 2...... Bias Overconfidence 3. Self-Servin 5. Belief 4...... Blindspot Bias A. Cognitive Biases E. The MalleabilityEmotion-Based of Choice E.Reactions Moral in Differences Cultural D.Teaching Outcome-Based Versus Intent-Oriented Teaching B. Biases Motivational D.Reconciliation & Punishment, Forgiveness, C. as Bias Retribution C.Response as a Specialized Retribution Behavioral B.Punishing Behavior Altruistic and Game Research C. PurePeopleRetributivists are Doubt Casting that D. Wrong Morally is Deserts Just for Pain of Infliction Why the A. Brain Imaging D. Group Punishment Altruistic Maintenance and B.Punish to Reason Drive is a Poor of a Satisfaction C. Differentiation Social and Retribution B. Signal Communication as Outrage Moral A. Problems Additional and Creates Deter Does Not Prison A.Group Larger Size RequiredMore Social Cooperation Harms Created by Retributivist Punishment V. 1385 ...... Heuristic as Mental Retribution VII. 1409 ...... Conclusion IV. 1373 ...... Evolution Retribution of Evidence Scientific VI. 1340 1340 REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM 42938-lcb_24-4 Sheet No. 107 Side B 02/02/2021 10:18:46 B 02/02/2021 107 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 108 Side A 02/02/2021 10:18:46

, 2 Id. at 369. 369. at at 369. 369. at Debates

Id. Id. While utilitar- While from revenge, it it from revenge, 5

at 394.at Mill argues 1 Id. 235 (1958). 235 (1958). 342, 381 (1939). (1939). 381 342, House of Commons ELATIONS R HILOSOPHERS 54, 58–59 (2015). (2015). 54, 58–59 P Y tisfaction resulting tisfaction resulting The justification for retribution is is retribution for justification The ’ 3 . at 396–97. (Fred Shapiro R. 2006). ed., This quote is OC

S Id

at 395. at Mill connected individual happiness to & OLITICAL Id. NTERPERSONAL NTERPERSONAL P I 269–70 UNISHMENT I. INTRODUCTION I. INTRODUCTION A utilitarian perspective judges an action as correct if if correct as an action judges perspective A utilitarian 4 TORY OF THE UOTATIONS S , 17 P Q SYCHOLOGY OF P HE ment, the legislature must seek the greatest happiness of the greatest the greatest ment, the happiness of seek the greatest legislature must at 368. Bentham specifically meant “the greatest happiness of the Bentham specifically368. the of happiness greatest at meant “the An eye forwholean eye leaves the world blind. HE , T Id. T

Crime, Punishment and the Moral Emotions: Righteous Minds and Their Their and Minds Righteous Emotions: Moral the and Punishment Crime, , OOK OF B ATLIN C If in this present age we were to go back to the old time of ‘an eye for an eye and an eye for ‘an eye of old time the back to go werewe to age present If in this EIDER ALE H : “ Y HE HE EORGE RITZ F Rob Canton, G Jeremy Bentham believed that the usefulness in institutions and conduct “is that which T In contrast to retribution is utilitarianism, a normative ethic stemming from stemming from ethic a normative is utilitarianism, to retribution In contrast Just deserts, vengeance, an eye-for-an-eye—these concepts are widely touted as as touted widely are concepts eye-for-an-eye—these an vengeance, deserts, Just 2 3 4 5 1 M K 12th Parl, 3rd Sess, Vol 113, No 4 at 496 (5 Feb. 1914) (statement of George P. Graham). P. Graham). George (statement of 1914) Feb. (5 496 at 4 No 113, Vol 3rd Sess, Parl, 12th a tooth for a tooth,’ there wouldbe very few hon. gentlemen in this House who would not, metaphorically speaking, be blind and toothless. “Canada, Parliament, legitimatepunishing bases for in ever-expandingan response to array of transgres- ianism can incorporate a notion of emotional sa emotional of a notion incorporate canianism greatest number,” meaning the greatest number of people; that is to say, Benthamgreatest number,” number that is to say, meaning the greatest is not concerned of people; Some scholars argue that Mill asserts that there is some kind of natural right or law that is superior useful.” “socially is what of view the sovereign’s to the happiness of society at large, meaning that the sum total of happiness or the “general the “general or happiness total of at large, meaning that the sum society the happiness of happiness” is in “unity with our fellow-creatures,” and thereby disregarding individualism. Born of anger, outrage, and blame, retributivist ideals are grounded in a desire for for desire a in grounded are ideals retributivist blame, and outrage, anger, of Born famously attributed tofamously Mahatma Gandhi, the although precise context has the of proven notion elusive. A similar sentiment was expressed by a Canadian lawmaker in 1914, arguing against the death penalty which is its own end. A retributivist outcome may or may not result in optimal optimal in result not may or may outcome retributivist A end. own its is which com- who has someone upon of suffering imposition the matter, No benefit. social mittedis a wrong a good in and of itself. Ben- Jeremy philosophers English nineteenth-century and eighteenth- the late Mill. Stuart John and tham people. of number the largest for benefit in the greatest it results 2020] RETRIBUTION RETRIBUTION 2020] 1341 revenge andmanifest in moral condemnation. outrage, of moral assuaging the from resulting satisfaction a hedonistic on based Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM

sions. Philosophers,psychologists, and scholars have the retribution drive described it a “force[].” called Heider Fritz psychologist Austrian part reason. emotion, as part Coming after Bentham,Stuart John Mill was also a utilitarian, but he wrote passionately about pleasure, arguing that there both quantities are and qualities of pleasure. makes for happiness.” makes for about the happiness of society, but of each the rather, claim individual to happiness. Attitudes Towards Punishment Towards Attitudes isthat moral action not the intuition of only duty or a matter of conscience, of but the of worldconsequences and its happiness. the for Thus, in designing punish number by “balancing” and by “social mechanics”—“one pressure against another.” C Y 42938-lcb_24-4 Sheet No. 108 Side A 02/02/2021 10:18:46 A 02/02/2021 108 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 108 Side B 02/02/2021 10:18:46

8 M K C Y UDGE BUT , EREMY J J EDERAL , 118 , 118 J. NALYSIS Retribution Retribution (2014). (2014). 7 A ORKS OF W VOLUTION OF E HE ENEFIT ENEFIT GAO-14-714, F GAO-14-714, HE -B RANSPARENT T

1 T 1 , : T OST in 364 (2009). (2009). 364 , C ORE ORE RAIN FFICE B O M S ’ E B tic that cues a punishing impulse. a punishing cues tic that OGNITION

OULD 10 UNISHER C P LEMENTS OFLEMENTS Pushing Moral Buttons: The Interaction Between Between Interaction The Buttons: Moral Pushing , 111 C 111 , E Signaling When No One Is Watching:A Reputation This early behavior was the en- shaped by This early behavior HE HE 9 , T EY EY CCOUNTABILITY Principles of Penal Law A K

, T ’ IGNIFICANCE IGNIFICANCE S OFFMAN

OV ’ H

. 57, 58 (2020). (2020). 58 . 57, ENTHAM B. NCLUDED B I U.S. G SYCHOL ORRIS P

EREMY Joshua D. Greene et al., . EGULATIONS M See See J R cf. OC GENCIES S

& : at 58; 365, 396 (John Bowring ed., Russell & Russell Inc. 1962) (1843). (1843). 1962) Inc. Russell & Russell ed., Bowring (John 396 365, For utilitarianism, society’s benefit themust outweigh aggregateof costs Jillian J. Jordan & David G. Rand, G. Rand, David & J. Jordan Jillian 14 (2014). 14 (2014). 6 See generally See See Id. See generally See Accountability example, the Government For a report Office issued to evaluating Congress URY Retribution as a justification for the state to impose consequences upon wrong- upon consequences impose to the state for a justification as Retribution Although the widespread acceptance of a retributivist approach seems at odds at odds seems approach a retributivist of acceptance widespread the Although J 8 9 10 6 7 ULEMAKING ENTHAM XPLANATIONS OF ERSONALITY ERSONALITY doers is a curious phenomenon standing in stark opposition to good-maximizing good-maximizing to opposition in stark standing phenomenon curious a is doers institutions. democratic our up prop to offered traditionally objectives inflicting punishmentpunishment. to administering justify fliction. Heuristics Account of Outrage and PunishmentinOne-Shot Anonymous Interactions Personal Force and Intention in Moral Judgment Moral in Intention and Force Personal shares characteristics with the kinds of powerful negative emotions that we typically typically that we emotions negative kinds powerful of with the shares characteristics retribu- The behavior. and thought counterproductive and irrational with associate tiveapproach lacks the qualitieswe routinely seek in policy justifications, such as cost-benefit analysis,fact-driven empirical justifications,and efficiency. Retribu- Experimental psychologists recently have modern-day suggested that rapidintui- tions are artifacts from many thousands of years ago when early social groups would harm: physical of infliction and direct immediate with violators to norm respond pain.” I impose to cooperate, fail “you

R E P B 1342 1342 in- punishment’s the from stemming harm possible any against good that balances REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM largement of human social groups, our human ancestors’ evolution, and social learn- social and evolution, ancestors’ human our groups, social human of largement ing that assured success. species’ the human the extent to which rules issued by federal agencies had expressly been evaluated using a cost- a using evaluated been expressly had agencies federal by issued rules which to extent the benefit analysis. AND tion-based punishment alsodefies systematic regulation and promulgates incon- underlyingsistent basis the outcomes. Because for this type of ispunishment an impossible. or difficult are standardization and quantification response, emotional Despite these realities, the notion of just deserts is entrenched in the U.S. legal sys- legal U.S. the in entrenched is deserts just of notion the realities, these Despite architecture. justice criminal in the particularly tem, roots prehistoric emotions’ human of examination a close sensibilities, modern with evolutionary work in Recent methods. retributive for rationale ancient an reveals co- human of development of the artifact an retribution is that suggests psychology retribu- with associated response emotional The behavior. altruistic and operation to serve as a heuris is thought outrage, tion, moral 42938-lcb_24-4 Sheet No. 108 Side B 02/02/2021 10:18:46 B 02/02/2021 108 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 109 Side A 02/02/2021 10:18:46

in , . 149, . 149, CI S

. , at 5 (Nov. 5 (Nov. , at HROUGH THE HROUGH T ALUES SYCHOL V P

. 453, 471–72 (N.J. (N.J. 471–72 453, Morality and the Social ON ON UM . H XPLORATION ERSP E N , 3 P A NTERACTION

I :

& ECTURES ON ON ECTURES

, are not designed for life without others; L note 11, at 5 ( noting11, that 5 ( notehumans at “come RIMATE Humans much lost of their power to P 14 Frans B. M. de Waal, ANNER supra supra T OGNITION UMAN see also in vidual: imposing punishment can result in a in result vidual: can imposingpunishment C H

, , Less frequent significantly contact diminished 13 Culture and the Evolution of the Human Social Instincts However, the shift was not without challenges. challenges. without was not the shift However, Although these aggressive tendencies are as ancient ancient as are tendencies aggressive these Although de Waal, 12 11 ULTURE VOLVING C 32 (2016); 32 (2016); E

: see also Morality: AnEvolutionary Account HE itate other humans’ successful behaviors, to reason, and to and to to other reason, behaviors, humans’ successful itate T

note 11, at 16. 16. at 11, note , CIENCES note 11, at 28–29(noting that companions offer advantages locatingin S This reliance gave rise to a form of cooperative altruism. All All altruism. cooperative of form a to rise gave reliance This OCIALITY supra S 15 HARPES supra supra S

, OCIAL OCIAL S UMAN H R. Boyd & P.J. Richerson, Dennis L. Krebs, de Waal, ONALD HARPES S See Cf. See D One important phase followed a significant shift that occurred tens of thou- of tens occurred that shift a significant followed phase important One Survival instincts, passedon through generations, remain with us today. Several 12 13 14 15 11 M K ATURAL AND OOTS OF this pattern changed as social groups became increasingly populous. Archaeological Archaeological populous. increasingly as groups social this became pattern changed as decreased tribes same in the individuals between contact that reveals evidence larger. grew human communities Enfield & StephenC. Levinson eds., 2006). as the firstyearslasted sapiens, Homo as of have over evolution, of the thousands they Whereas initially, all amonghuman familiarvirtually occurred interaction others, humans become “hopelessly depressed” in the absence of company, and without social support,and without company, of in the absence depressed” becomehumans “hopelessly deteriorate). healthhuman outcomes R food and avoiding predators); from a long lineage hierarchical of animals for which lifenot an option in groups but is a survival strategy”).

N early humans’ ability to punish freeloaders and transgressors, diluting reputational reputational diluting transgressors, and freeloaders punish to ability humans’ early 2020] RETRIBUTION RETRIBUTION 2020] 1343 Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM multiple phases of human development, and are present in human society today. today. society human in present are and development, human of phases multiple to structure small-group a from moved society human when ago, years of sands an was increasingly larger social groups Forming communities. cooperative larger in- the species ways, as important in benefitted Humans strategy. survival excellent to im creased the ability experience. from social benefit membersof society were called uponto policeall other members. However,altruis- the indi onimposes costs tic behavior 19–20, 2003) (pointing out that our bodies and minds ofprimitive theseinstincts involve social aggression, necessitated by competition for of resources. defense and mates Instincts: Continuity with the OtherPrimates predict when they would be victimized and to respond to bad behaviors directly. As As directly. behaviors to bad respond to and victimized be would when they predict reliantofa became other humans more on society result, members to keep transgressors in check. 159 (2008). (2008). 159 backlash and harm to the punisher. Accordingly, a strong and almost irresistible irresistible almost and a strong Accordingly, punisher. the to andbacklash harm as the evolved impulse This action. necessary the to motivate required was impulse pun- to instinct and reaction a strong assured but all and outrage, of moral emotion be would wrongdoers assured that Retribution was born. retribution ish. Hence, effects that served as a check on wrongdoers. on a check as served that effects C Y 42938-lcb_24-4 Sheet No. 109 Side A 02/02/2021 10:18:46 A 02/02/2021 109 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 109 Side B 02/02/2021 10:18:46 M K C Y . 527, ULTURAL Desires to

SYCHOL : P

. As a result, all EV 16 R

. OOPERATE NN

C 19 , 52 A UMANS H HY HY note 20, at 535. 535. at 20, note W

not confined to injustices perpetrated perpetrated to injustices confined not , supra . 1, 2 (2009). 2 (2009). . 1, sult to the community’s integrity, provok- integrity, community’s the to sult CI S

. ENRICH H OC S

Moreover, research has shown that individuals individuals shown that research has Moreover, When early humans observed and imitated re- imitated and observed humans early When 20 18 &

8 (2007) (describing social learning by portraying a human OSEPH L.

J .

& EV R Id.

. note 2, at 221; Miller, Miller, 221; 2, at note NN Morality in the Law: The Psychological Foundationsof Citizens’ Disrespect and the Experience of Injustice of Experience the and Disrespect note 14, at 159. 159. at 14, note ENRICH XPLANATION E H , 5 A , 5 supra , supra (describing generational cultural transmission as “an adaptive systemlearned of ATALIE EIDER N H Krebs, Krebs, Social learning, driven by emotion, was an essential feature in developing in developing feature an was essential by emotion, driven learning, Social See id. id. See T. Miller, Dale See See Darley, M. John See The transgression represents an in an represents transgression The 17 VOLUTIONARY Reactions to moral transgressions are automatic and powerful. Like other illog- other Like powerful. and automatic are transgressions to moral Reactions Evidence that outrage is a cooperative social phenomenon comes from game game from comes phenomenon social a cooperative is outrage that Evidence Moral outrage’s automatic emotional response was sufficiently compelling to to compelling sufficiently was response emotional automatic outrage’s Moral 21 E 19 20 21 16 17 18 ical impulses, the drive to punish is a primitive instinct. The human brain’s prefron- brain’s human The instinct. primitive a is punish to drive the impulses, ical predispo- but ancient and reason, thought for higher allow to evolved has tal cortex have scientists behavioral years, 20 past the Within override. to difficult are sitions or heuristics by influenced behavior is of human much that understand to come and eat[ ] whatever they eat.” eat.” they ] whatever eat[ and Punish Transgressions Punish (2001). 535 traits that accumulate over time”). traits that accumulate ing moralistic anger, and an urge to punish the offender for the sake of all society. society. all of sake the for offender the punish to urge an and anger, moralistic ing AND 1344 1344 wrongdoing. by the affected directly not those by even punished, REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM

research, revealing that when individuals see third parties victimized, they are moti- are they victimized, parties third see individuals when that revealing research, have cooperation social study who Psychologists victimizer. the punish to vated is anger moralistic of arousal “[t]he that noted against one’s self. Witnessing the harming of aparty third can alsoarouse strong injustice.” and anger of feelings react most strongly when witnessing violations particular to their moral commu- theirparticular moral witnessing violations to when react most strongly nity. sponses to the moral outrage experience, they learned from other group members, members, other group from learned they experience, outrage moral the sponses to perpetuating previous generations’ reactionsand responses. born in a band of hunter-gatherers trying to figure out what In this situation, to eat). a human would have the option to wander around the environment “sampling various potential foods” until it found something to eat. However, this is risky becausecould there be poisonous food in group [the] of members healthiest the ] on “focus[ will learner social a Instead, the environment. community members could reinforce and of on behavior prevailing the reinforce rely community norms members could occurred. they wherever and whenever cooperate to and failures punish to others Punishmentpunisher. costs to the researcher potential the despite action, motivate moral and punishment. outrage John Darley hasdescribed the “phenomenological characterization of the feelings outrage,” moral of a feeling transgression: a of aware become they when have persons computes roughly and systems intuitive by humans’ produced “is which a feeling what transgressordeserves the justlyon based the moral wrongness of the transgression.” 42938-lcb_24-4 Sheet No. 109 Side B 02/02/2021 10:18:46 B 02/02/2021 109 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 110 Side A 02/02/2021 10:18:46

25 . 261, . 261, EHAV B Cullen et al., et al., Cullen see also (1924). (1924).

DAPTIVE A 340 , 28 , L. 599, 618 (2011). (2011). 618 L. 599,

Compared to a non-pris- to Compared These heuristics are auto- are heuristics These 28 &

. societal groups”). 22 Y HOUGHT HOUGHT ’ 1, 19 (2017); 1, 19 (2017); T OL lculus is inherently utilitarian. is inherently lculus P

. Under the utilitarian approach, the the approach, utilitarian the Under UB

. recidivism. t reduce recidivism non-custodial more than OLITICAL example, one of the most primitive im- primitive most the of one example, P RIMINOLOGY to a retribution model of criminal punish- C Punishment Without Reason: Isolating Retribution in in Retribution Isolating Reason: Without Punishment SYCHOL may not be useful to increase when there are significant benefits to offset the the to offset benefits are significant when there Examining Prison Effects on Recidivism: A Regression Regression A Recidivism: on Effects Prison Examining ISTORY OF OF ISTORY Were utility the primary goal, our sentencing and and sentencing our goal, primary the utility Were , 18 , 18 P

Prisons Do Not Reduce Recidivism: The High Cost of Ignoring only H

26 24 , As evolutionary psychologists Eyal Aharoni and Alan Alan and Aharoni Eyal psychologists evolutionary As 23 XPERIMENTAL XPERIMENTAL E

Offenders ETTELL Onthe SimplicitySimple of Heuristics

, 13 J. G. J. 48S, 50S (2011). (2011). 50S J. 48S, AYMOND RISON Ojmarrh Mitchell et al., al., et Mitchell Ojmarrh Francis T. Cullen et al., Gašper Štukelj, Gašper Štukelj, Eyal Aharoni & Alan J. Fridlund, R (noting that research on infanticide behavior “shows how impulses that might have 345. 340, at Studiespunishment of and recidivism haveincarceration shown that has it is a means to an end. an to a means is it See See Id. See Id. See See See See 27 , 91 P When considering policies that serve our modern interests, we often talk about about we talk often interests, our modern serve that policies When considering note 27, at 60S (finding that prisons do no — 23 24 25 26 27 28 22 M K matic, largely unconscious, and often defy logic. In the ancient world, shortcuts shortcuts world, the ancient In logic. and often defy unconscious, largely matic, For survive. our ancestors help to evolved a charging faced ancestors ancient our When response. our fight-or-flight is pulses blood sends respiration, our up speeds that adrenaline of burst automatic the lion, of flood same that Today, useful. was of a us energy gives burst and to our legs, example, For performance. modern of context the in maladaptive often is adrenaline more speaking public make palms sweaty rate, and heart increased rapid breathing, may impulse retribution the instincts, adaptive formerly other some Like difficult. its usefulness. have outlived supra not served to reduce crime and may may and crime to reduce not served benefitted our ancestors’ individual fitness Discontinuity Approach 269 (2020). (2020). 269 Science penal practices would look very different. For example, it is impossible to explain explain to impossible is it example, For different. very look would practices penal a exacts Incarceration framework. a utilitarian within rates current incarceration burdens the perspective, a utilitarian From communities. and on taxpayers toll heavy incarceration of favor in argue losses. oner control group, offenders who received harsher sentences and prison time were time and were prison sentences who received harsher offenders group, oner control When it comes to punishment, the utilitarian goal of crime deterrence is widely widely is crime deterrence of goal utilitarian the punishment, to comes When it endorsed be cannot incarceration of system American current the However, touted. using a utilitarian rationale.In contrast ment,utility-based a askstheory which choice ofoptions various will ultimately society. to good overall greatest in the result Fridlund have argued, “[i]f human punishment is driven largely by retribution, and and retribution, by largely is driven punishment “[i]f human argued, have Fridlund whether ask to forced are we judgments, heuristic of way by at arrived is retribution trust such judgments.” we can 2020] RETRIBUTION RETRIBUTION 2020] 1345 pattern. predictable a follow that “shortcuts” mental Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM getting the most good for the least cost. This ca cost. least the for good getting the most primary goal of punishment is to deter; pain is not exacted for the sake of causing causing of sake the for exacted not is pain deter; to is punishment of goal primary pain Lay Punishment of Criminal C Y 42938-lcb_24-4 Sheet No. 110 Side A 02/02/2021 10:18:46 A 02/02/2021 110 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 110 Side B 02/02/2021 10:18:46

. M K 31 Id. UB C Y

. & William (July 26, 26, (July see also In terms of of In terms But see But 29 NITIATIVE I

RIMINOLOGY . (July 22, 2010), 2010), 22, (July f-worlds-population- UST J Recidivism and Time Served Served Time and Recidivism , 17 C , ast for inmates serving up toast for five QUAL , C-SPAN (Apr. 29, 2015), 2015), 29, (Apr. , C-SPAN AM), 7:00 2015, 30, (Apr. CONOMIST

30 , OST , E P Lawmakers on both sides of the

. 34 ASH , W 83, 118–19 (2016) (finding that “there is an inverted inverted an is “there that (finding (2016) 118–19 83, 189, 193–95 (2005). (2005). 193–95 189, tates-really-have-five-percent-o Y ’

Moreover, the trend has been inversely related related been inversely trend has Moreover, the 35 33 OL P

Yes, U.S. Locks People Up at a Higher than Rate Any Other &

time served and recidivism, served at le time RIMINOLOGY On the Unlikely Prospect of Reducing Crime Rates by Increasing the Does the United States Really Have 5 Percent of the World’s Population note 28, at 3. 3. at 28, note C

RemarksColumbia at University , 13 J.L. &

As one commentator noted, “[i]t’s a stark fact that the U.S. has has U.S. the that fact a stark “[i]t’s noted, commentator one As L. supra supra

(July 7, 2015, 12:00 AM), https://www.washingtonpost.com/news/fact- . 32 OST RIM P C

. RelationshipBetween Prison Length of Stay and Recidivism: A Study Using Regression Michelle Ye Hee Lee, Lee, Ye Hee Michelle ASH John M. Darley, Darley, M. John

, 106 J. , 106 See See Hillary Clinton, Id. Lee, Hee Ye Michelle Mitchell et al., al., et Mitchell See Prisoners Many Too Laws, Many Too See , W 731, 733 (2018) (finding that lengthening a prison term does not increase recidivism, but but recidivism, increase not does term prison a lengthening that (finding (2018) 733 731, Although the data is clear, lawmakers have not moved decisively to change change to decisively moved not have lawmakers clear, is the data Although Y 32 33 34 35 29 30 31 ’ OL and-one-quarter-of-the-worlds-prisoners/. world’s total prison population.” prison total world’s Discontinuity and Instrumental Variables with Multiple Break Points United States Considered Most Punitive Country in the World rather reduces recidivism by a small amount); Daniel P. Mears et al., et al., Mears P. Daniel amount); small by recidivism a rather reduces in Prison political aisle have lamented the effects of the U.S.’s draconian approach to punish- to approach draconian U.S.’s the of effects the lamented have aisle political over- current does the only “[n]ot that out pointed senator Republican ment. One the into deeper digs it also incarcerated, hurt those system underfunded populated, Americans.” of taxpaying pockets to six years in prison”). This means that there may be no single time served on recidivism, effect of time served. the specific depending of amount on may vary time served and that the effect of U-shaped relationship between U-shaped relationship checker/wp/2015/04/30/does-the-united-s https://www.c-span.org/video/?325657-1/hillary-clinton-remarks-criminal-justice-reform Severity of Prison Sentences Prison of Severity The rate of incarceration remains staggeringly high and is significantly higher than than higher and is significantly high remains staggeringly incarceration of The rate country. other any at 119. 119. at impacts on individuals, society, and the cost to American taxpayers, the United the United taxpayers, and the cost to American society, on individuals, impacts anti-utilitarian. are practices harsh States’ sentencing

P sanctions, and that incarceration may increase recidivism in low-risk offenders). et al., Rhodes 1346 1346 positive produce to failing sentences harsh are only Not reoffend. to likely more REVIEW LAW & CLARK LEWIS 24.4 [Vol. of the percent 25 almost we have yet population, of the world’s percent less than 5 Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM to crime rates. Incarceration rates are “higher than they were 30 [to] 40 years ago, 30 [to] 40 years ago, were they “higher rates than are Incarceration to crime rates. lows.” at historic is crime that fact the despite https://www.economist.com/briefing/2010/07/22/too-many-laws-too-many-prisoners; 2010), https://eji.org/news/united-states-is-most-punitive-country-in-the-world-study-says/. punishmentpolicy. Rhetoricaround the need tobe“tough on crime” persists in the country. punitive most world’s the is States United the although States, United Country and One Quarter of the World’s Prisoners? gains, but they are also creating significantgains, are consequences. they collateral but 42938-lcb_24-4 Sheet No. 110 Side B 02/02/2021 10:18:46 B 02/02/2021 110 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 111 Side A 02/02/2021 10:18:46

in promoting social social in promoting stinct and other automatic heuristic heuristic automatic other and stinct s from retributivist goals violates the the violates goals retributivist from s d the non-utilitarian goal of retribution retribution of goal non-utilitarian d the plore its ancient role its ancient plore s punishment approaches. As crime rates II. THEORIES OF PUNISHMENT AND HUMAN BEHAVIOR BEHAVIOR HUMAN AND OF PUNISHMENT II. THEORIES Many,first-year if criminalmost,law not classesdiscussion begin a with of

Part I of this Article first discusses the main tenets of retributivist and utilitarian Part andfirst I of utilitarian this discusses Article the main of retributivist tenets The effects of retribution-based punishment policies suggest that moral outrage outrage that moral policies suggest punishment retribution-based of The effects M K widely in the justifications for their preferred method. Most agree that different different that agree Most method. preferred their for justifications in the widely punishment goals will support different processes, considerations, and results. punishment theories. The main theories justifying punishment are the utilitarian utilitarian are the punishment justifying theories main The theories. punishment an and incapacitation, of deterrence motives vary approaches different these of merits the debate who Those deserts. or just pragmatic and ethical objectives of a civilized, organized, and free society. society. free and organized, a civilized, of objectives ethical and pragmatic the type of draconian punishment that flow that punishment draconian of type the cues that lead to poor judgments. Finally, Part V describes the myriad ways in which inways which myriad Finally, V describes the Part judgments. poor lead to cues that cooperation. Part III explains how modern science, including behavioral research research behavioral including how modern science, explains III Part cooperation. discusses IV Part retribution. of roots evolutionary the confirms data, brain-scan and in retribution the human between the similarity punishment and then explores behavioral science findings that can shed light on on light shed can that findings science behavioral explores then and punishment his- the evolutionary into delves II Part others. punish seek to people why how and ex to outrage moral of emotion the of tory fluctuate, and behavioral science and technology advance, social scientists and stat-social and scientists advance, technology and science behavioral and fluctuate, The best crime. to respond and measure to ways innovative provide can isticians utilitarian approach offers an opportunity for flexibility and change, responding to the need to recognize come shifting requirements. has inputs The time and social motiva- gut-driven harmful, outdated, behind our leaves that afor new approach mem- all of good the toward an eye with approach a sophisticated of favor in tions society. bers of urement of costs and benefits of variou creates policy that is antithetical to American interests. If lawmakers can identify identify can lawmakers If interests. American to antithetical is that policy creates function, useful a serves longer no that strategy survival ancient an as outrage moral any by justified are not that policies from away move to motivated be they might while practices harmful eliminate would model utility-based A analysis. cost-benefit emphasize practices Restorative to crime. responses restorative for space creating Models offender. of the reintegration and reconciliation as as well victim, healing the society on effects long-term the address to fail pain imposing on exclusively based Americans, millions of of incarceration long-term widespread, the from resulting eventual the of effects the and communities poorer for the consequences including meas- and quantification require would approach utilitarian A inmates. of release https://www.washingtonpost.com/news/fact-checker/wp/2015/04/30/does-the-united-states- really-have-five-percent-of-worlds-population-and-one-quarter-of-the-worlds-prisoners/. 2020] RETRIBUTION RETRIBUTION 2020] 1347 Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM

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M K C Y , 17 , 54 , 54 , 40 , 40 THICS This Crime, 37 The sever- The OOKS OF THE , 101 E shment should 39 B This goal is fa- is goal This 36 REAT Rob Canton, 42 G Are Shaming Punishments Punishments Shaming Are through punishment is a sufficient reason for the state see also cleansing reprinted in reprinted Dan Markel, punishment, and that puni punishment, real-world decisions about sentencing sentencing about decisions real-world Psychological Aspects of Retributive Justice (1790), (1790), Some Thoughts About Retributivism be punished, regardless of the consequences”). the consequences”). of regardless be punished, see also see also constitutes a good or Deontologists who follow Kant’s reasoning reasoning Kant’s follow who Deontologists IGHT 40 . 193, 194 (2008); 194 . 193, R must Kant defended this stance as a “categorical im- a “categorical as stance this defended Kant 38 SYCHOL P note 36, at 197. 197. at 36, note

note 36,at 66 (noting that “[t]he idea that an unavenged wrong . CIENCE OF S David Dolinko, Dolinko, David OC supra S HE supra T

, 446 (W. Hastie trans., Hutchins et al. RobertHastie Maynard eds., Encyc. (W. 446 note 39, at 446–47; at 39, note

But see But ed because . . ed because . that ‘deserves’ he . 54, 57 that positive retributivism (2015) (describing the principle within Y ANT ’ 392, K supra

Canton, OC , S

ibutive? Retributivism Implications and the forAlternative the Sanctions Debate & . 2157, 2158–59 (2001) (noting that a “weak sense” of retributivism asserts that “a “a that asserts retributivism of sense” “weak a that (noting (2001) 2158–59 . 2157, ANT XPERIMENTAL ORLD ORLD E see also see EV K W ; R

MMANUEL See Carlsmith & Darley, Id. I Kevin M. Carlsmith & John M. Darley, L.

. “Retributive justice is a system by which offenders are punished in proportion proportion in punished are offenders which by a system is justice “Retributive 40 37 38 39 36 ESTERN AND DVANCES UNISHMENT debases and pollutes the community may persist” and that “ debases may persist” and pollutes community the recurrent metaphor in justifications of retribution,” as evidenced by Kant’s insistence that “even in remaining last murderer the . . . agreement by itself were common dissolve if a civil society to that someone who guilty be is not that someone must not punished”). to inflict punishment on [the person]”). [the person]”). inflict on punishment to 537,542 (1991) (calling a bold retributivist someone who “asserts both that lawbreakers [the] deserve punishment that this, all and itself, by ityofpunishment a in just deserts framework is presumed to be measured against their to regard without transgression, for their blameworthiness moral offenders’ perspective, related to the deontological approach, derives not from the future con- future the from not derives approach, deontological the to related perspective, give to obligation moral universal a from but rather punishment, the of sequences “deserve.” they what wrongdoers

affirms that “someone who is guilty ought to be punished” while “the negative principle asserts W 1348 1348 merely is not theories punishment of merits various the on the debate Therefore, for implications important it has academic; REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) policy. Goal Retribution A. The 1/18/2021 5:23 PM harms.” committed intentionally of their magnitude to the moral perative” to punish not for any practical end goal, but for its own sake. own its for but goal, end practical any for not punish to perative” V may be punish criminal Beautifully Retr prison must first be executed so that . . . the blood guilt thereof will not be fixed on the people”). the people”). on fixed be not will thereof guilt blood the . . . that so be executed first must prison Britannica, Inc. 1952). 1952). Inc. Britannica, A mously associated with philosopher Immanuel Kant, who argued that those who who those argued that who Kant, Immanuel philosopher with associated mously wickedness.” “internal their to according punished to be deserve laws violate punish- of to society costs rehabilitation, for potential the dangerousness, future Punishment and the Moral Emotions: Righteous Minds and Their Attitudes Towards Punishment Towards Attitudes Their and Minds Righteous Emotions: Moral the and Punishment P be meted out in proportion to the wrong committed and the blameworthiness of the offender” the offender” of committed and the blameworthiness to the wrong in proportion be meted out while “strong” retributivism “incorporates the same desert and proportionality assertions [while] also impos[ing] an obligation: the criminal ment, or other possible consequences. ment, or other 42938-lcb_24-4 Sheet No. 111 Side B 02/02/2021 10:18:46 B 02/02/2021 111 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 112 Side A 02/02/2021 10:18:46

46 47 38 . 17, . 17, note Kant Kant see also justice EV 41 R

supra L.

. ANCTION S LA F

Towards a Theory of of Theory a Towards ‘on grounds of RIMINAL , 40 U. , 40 C As commentators have have commentators As 43 Q. 238, 238–45 (1979); (1979); 238–45 238, Q. AharoniFridlund, &

. Prominent utilitarian Jeremy Jeremy utilitarian Prominent 44 HIL ee also ee also would it support IMITS OF THE THE OF IMITS 29 P L

, produce law-abiding behavior”). ve grounds). One death penalty scholar “has HE T

, Calculating Injustice: The Fixation on Punishment Punishment on Fixation The Injustice: Calculating . 575, 579–80 (1992). (1992). 579–80 . 575, EV R ACKER

P L.

note 36, at 197; s 197; at 36, note

note 36, at 197 (discussing Bentham’s 36, at 197 note work). L. tra deterrent effect he effect tra deterrent The Moral Good Theory of Punishment of Theory Good The Moral supra supra Varieties of Retribution of Varieties Bentham argued that the right of one person to punish punish to person one of the right that argued Bentham . 161, 183 (2016) (discussing deterrence theory, which “seeks to to which “seeks theory, deterrence (discussing (2016) 183 161, . ERBERT C.R.-C.L. 45

. EV note 6, at 396. H Carissa Byrne Hessick & Douglas A. Berman, R

ARV L. See See

note 39, at 446. 446. at 39, note supra supra

, , 27 H , 27 execution had no ex note 39, at 538 (pointing out that retributivism has traditionally out that retributivism538 has (pointing 39, the at provided note supra

, See generally See at 580. 580. at Carlsmith & Darley, John Cottingham, John

Carlsmith & Darley, , 96 , 96 B.U. supra

ANT ENTHAM Id. 42 Id. See B See See See K Michelle Comment, Kalstein H. et al., For a utilitarian, punishment “gives force to the law” and “is necessary because because necessary “is and law” the to force “gives punishment For a utilitarian, 44 45 46 47 41 42 43 M K Mitigation a net benefit to society. to benefit a net alone.’” another is limited: “If the apparent magnitude, or rather value of [the] pain be be pain [the] of value rather or magnitude, apparent the “If limited: is another to expects he good or pleasure the of or value magnitude apparent the than greater it.” performing from prevented absolutely be he will act, of the consequence be the Dolinko, Dolinko, who Americans that and States, United the in the death penalty for support of primary basis support the death penalty do so based on retributi said that even if as Crime Control of punishment to threat using the decrease crime by This consequentialist philosophy holds that any decision to punish individuals must must individuals punish to decision any that holds philosophy consequentialist This society. to harm future for potential the against transgressor the to the harm weigh to exclusively almost is punishment for justification the approach, this to According and other strict retributivists rejectvarious utility-based rationales,maintaining that 18 n.2 (1988) (explaining that a consequentialist theory “holds that a theory of the right is (1968). 2020] RETRIBUTION RETRIBUTION 2020] 1349 pro- including approach, retributivist the for justifications several articulated have posing that inflicting pain on transgressors serves to arestore moral balance. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM

Bentham argued that punishment could only be justified because it would result in in result it would because justified be only could punishment that argued Bentham B. The Utilitarian Goal Goal Utilitarian B. The not is punishment system, utilitarian a in action any like order”: social preserves it happiness. augments it because only but in itself, valuable noted, the utilitarian’s vision of punishment is “forward-looking to crime preven- to crime “forward-looking is of punishment vision utilitarian’s the noted, guilt.” moral to backward-looking than rather tion, “punishment can never be administered merely as a means for promoting another another promoting for a means as merely administered be never can “punishment good.” determined by a theory of the good,” and that “consequentialist theories maintain that is an act right if it brings about more good than an alternative course of conduct”). 23, at 600; Robert Justin Lipkin, C Y 42938-lcb_24-4 Sheet No. 112 Side A 02/02/2021 10:18:46 A 02/02/2021 112 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 112 Side B 02/02/2021 10:18:46 M K C Y note 43, at supra The utilitarian ap- utilitarian The 48 General deterrence is is deterrence General 53 thods, targeted to achieve thods, targeted to achieve Therefore, proponents of of proponents Therefore, Kalstein al, et 50

see also 51 ss these objections by arguing that non- that arguing by objections these ss d supplant the individual preferences of policy d supplant the individual of policy preferences

49 114–20 (1996). 114–20 note 36, at 197. note 36, 200–02; at note 36, at 200. 200. at 36, note supra supra are served through me various are served TILITARIANISM supra U

, at the value of life is more than a of important balance pleasure life of at the value CARRE S Specific deterrence focuses on an individual offender; the imposition imposition the offender; an individual on focuses deterrence Specific

52 Carlsmith & Darley, CarlsmithDarley, & at 201. 201. at This form of deterrence differs from “specific deterrence” in that it reaches This differs“specificin form it reaches from that of deterrence deterrence” EOFFREY 54 G See Carlsmith & Darley, Id. See See id. See Anotherobjection to utilitarianism it would is that prove unworkable. Individuals have Another objection levied—particularly against Jeremy Bentham’s hedonistic against hedonistic Bentham’s Jeremy levied—particularly objection Another Critics of utilitarianism argue that, followed to its logical end, pure considera- pure end, logical its to followed that, argue of utilitarianism Critics Consequentialist goals Consequentialist 51 52 53 54 48 49 50 580–81. 580–81. makers. idiosyncratic preferences; most people, if given the choice between either saving a loved one or one loved a saving either between the choice given if people, most preferences; idiosyncratic saving two strangers from impending disaster would choosethe loved one. And yet, saving two lives clearlyhas more utility than saving one. The answer to this objection is that when theState society. broader to a policy utility of the for a concern of out operate it should policy, is choosing In a democratic system, utilitarian objectives shoul the process of discouraging the commitment of offenses by members of the general of members the general by offenses of commitment the of discouraging the process public.

breakdown of social order, and erode our institutions. our erode and order, social of breakdown these keep would happiness and order societal of goal larger the argue, approach this minor in transgressions check. th emphasis—holds addre of utilitarianism over pain. Proponents philoso- British example, For for the theory. by accounted can be values hedonistic love, of consciousness—including kinds many regarded G.E. Moore phers like of independent valuable, intrinsically beauty—as of experience the and knowledge, utilitarianism.” “ideal labeled a position pleasure, 1350 1350 behavior. harmful future controlling by welfare social promote REVIEW LAW & CLARK LEWIS Propo- stealing. and lying acts like condemned widely to lead might utility of tion utilitarian the in the aggregate, that out pointed have theory nents of utilitarian approach supportminor cannot moral transgressions that justified be could by small in- For destructive. be would they widely, promulgated if because gains, utilitarian 24.4 [Vol. but if in the short-term, beneficial be “white” might lie small occasional stance, the the to contribute distrust, widespread to lead could lying over, and over repeated Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM or threat of punishment creates a disincentive for that individual to reoffend by by reoffend to individual that for disincentive a creates punishment of or threat a crime. for committing consequence a painful providing maximum benefit and social wellbeing. The greatest utility may be achieved through through The be achieved may utility greatest maximum and socialbenefit wellbeing. general and deterrence, specific execution), or imprisonment (e.g., incapacitation deterrence. proach eschews consideration of moral guilt in favor of a cost-benefit analysis and and analysis aof in favor guilt of cost-benefit moral proach eschews consideration proactive minimization of bad outcomes. 42938-lcb_24-4 Sheet No. 112 Side B 02/02/2021 10:18:46 B 02/02/2021 112 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 113 Side A 02/02/2021 10:18:46

, : 3 56

, Psy- 59

EHAVIOR (1924). (1924). ENTHAM 57 B B ERSONALITY HILOSOPHY P P HE

90–91 (2016) (2016) 90–91 , T , 95 J. , 95 EHAVIORISM USTICE J OLITICAL note 36, at 203–11. See generally See , B KINNER P S

supra ATSON RIMINAL C W

B. ISTORY OF OF ISTORY How Many Lives Shall We Save? ManyHow Lives Shall (1974); B.F. (1974); H ODERN ODERN A single act of punishment can ac- can punishment of act A single OHN 55 M ve written extensively on the conse- on extensively written ve (1938); J (1938); Carlsmith & Darley, & Carlsmith In recent writing, psychologist Neil Vidmar Vidmar Neil psychologist writing, recent In EHAVIORISM EHAVIORISM RISIS OF B 60 C see also The Paradoxical Consequences of Revenge of Consequences Paradoxical The NALYSIS BOUT A , A UNISHMENT AND THE , P note 39; Gertrude Ezorsky, 39; Ezorsky, note Gertrude KINNER S

note 6, at 396. HUSTER

supra XPERIMENTAL S E B.F. supra EPUBLICANISM TO THE 156 (1972). 156 (1972). , N R . 1316, 1316 (2008); (2008); 1316 . 1316, ANT A

: at 201 (pointing out that “[t]aken to its logical extreme, philosophers have argued argued have philosophers extreme, logical its to “[t]aken that out 201 (pointing at RTHUR id. at 201–02. at A Kevin M. Carlsmith et al.,

ENTHAM SYCHOL Animal and human behaviorists ha behaviorists and human Animal LASSICAL P B See generally See See Id. See

58 . C The subject of punishment has received a great deal of attention from philoso- from attention of deal a great received has punishment of The subject (1) there is a perceived rule or norm violation; (2) the rule violator’s intention intention violator’s rule the (2) violation; norm or rule perceived a is there (1) or threatens (2) and (1) of combination (3) the as blameworthy; perceived is inter- or status, self, personal perceiver’s the to related values harms actually the (5) aroused; is anger of emotion negative the (4) values; group nalized RGANISMS note 6; K 57 58 59 60 55 56 OC O S M K ETAPHILOSOPHY

ROM complish both specific and general deterrence when the punishment is publicized publicized is the punishment when deterrence and general both specific complish dis- are and suffering offender’s individual the see community the in people that so sameconsequences. the fear receiving of for offense the committing from couraged M Bentham emphasized the importance of general deterrence, arguing that “preven- that arguing deterrence, general of importance the emphasized Bentham justification.” real is its as it punishment, of end the chief be ought to tion proposed a six-stage model of the social-psychological dynamics of retribution: retribution: of dynamics social-psychological the of model six-stage a proposed F supra &

C. PsychologicalC. Studies of Punishing Behavior phers, politicians,is behavioral educators, aand Thereothers. scientists, sizable body punish- imposing for justifications the addressing literature of multidisciplinary ment. 2020] RETRIBUTION RETRIBUTION 2020] 1351 of range a wider prevents theoretically and offenders, potential of pool a broader people. among a of number larger infractions Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM OF (discussing Italian philosopher Cesare Beccaria’s theory of punishment). chologists have recently turned their attention to the social and cognitive factors factors and cognitive social the to attention their turned have recently chologists punish. to desire people’s influencing quences of receiving punishment—often in empirical studies on learning. on studies empirical in punishment—often receiving of quences that the key features of retribution—severity of the crime, responsibility, mitigating factors, etc.— factors, responsibility, mitigating crime, the of retribution—severity of features key that the are entirely irrelevant to a theory of deterrence. In fact, even guilt is irrelevant.”). The difficulty The difficulty is irrelevant.”). guilt even fact, In theory of deterrence. a to irrelevant entirely are with this supposition is that it ignores that that individual the fact members recognize society of in a functioning democracy, punishment is limited by the moral obligations of its citizenry, and how are imposed. sanctions this sets practicallimits upon C Y 42938-lcb_24-4 Sheet No. 113 Side A 02/02/2021 10:18:46 A 02/02/2021 113 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 113 Side B 02/02/2021 10:18:46

. . . M K 64 CI EV 31, C Y S

R (Kim (Kim .

Y AW ’ norma- L SYCHOL 399 OC S or

SYCHOL &

, 14 P , 14

, 28 P 61 ESEARCH IN IN ESEARCH VOLUTION , 14 , 14 L. R E of punishment, and Increasingly, policy policy Increasingly, prescriptive Altruistic Behaviors from a a from Behaviors Altruistic 62 TS I how USTICE note 60; Giner-Sorolla Roger J NeilVidmar & Dale T. Miller, , and , and supra The WhiteBear Story why , see also and some are are some and ANDBOOK OF OOPERATION AND when H C in venge, empathy, social consensus, perspec- consensus, social empathy, venge, (2006); Felix Warneken, , in

Carlsmith et al., descriptive

, Behavioral science can illuminate how people people how illuminate Behavioral science can 274 63

. Emotions and Actions Associated with Altruistic Helping and note 23, at 614–15. be. note 36; note ying Attitudes Toward Legal Punishment Legal Toward Attitudes ying supra SYCHOL P social norms—and their violations—are at the heart of retributive should supra Beyond Purity: Moral Disgust Toward Bad Character Bad Toward Disgust Moral Purity: Beyond For example, we are biased against certain groups based upon upon based groups certain against biased are we example, For Retribution and Revenge and Retribution 65 Canton, 2013). 2013).

DanielDavid M. Wegner J. & Schneider,

VOLUTIONARY , Aharoni & Fridlund, , 4 E 326 (2003). 326 (2003). See generally in this work. I attempt both As usual, See See, e.g. Neil Vidmar, Most Americans have opinions on the cognitions and aroused emotions foster reactions against the violator; (6) dur- violator; the against reactions foster emotions aroused and cognitions toward return cognitions dissipates, the anger punishment following or ing re on altruism, findings Empirical In scholarship, some projects are homeostasis, and the rule or norm is perceived to be vindicated. perceived to is norm or rule and the homeostasis, 62 63 64 65 61 . A descriptive project aims to explain how something is, while a prescriptive prescriptive a while is, something how to explain aims project . A descriptive NQUIRY most of us are comfortable explaining and even arguing for our preferred positions. preferred our for arguing even and explaining are comfortable us of most explaining the reasons for various penalties. explainingpoliticians for various argueabout For instance, the the reasons principles Moreover, public. and the worship, of houses streets, to the messages take treaties. international forge response to crime relating practices and make decisions and what factors influence their choices. Law, philosophy, religion, make and what decisions factors influence their religion, Law, choices. philosophy, the punishment, of arena In the piece. normative the up take disciplines other and pages of have hundreds we because seem superfluous may role scientist’s behavioral merits of various crime response approaches,whereas activists and religious leaders & Hanah A. Chapman, Developmental and Comparative Perspective However, while people usually feel like they understand the reasons for their atti- for their reasons the understand they like feel usually people while However, disconnect a demonstrated empirically have scientists social behaviors, and tudes amount of An what influences enormous motivations. perceived between and true us is unconscious. 565, 568 (1980) (arguing that justice). et al., Eldakar Tonsi Omar 80 (2017); I 43 (Joseph Sanders & V. Lee Hamilton eds., 2001); 2001); eds., Hamilton Lee V. & Sanders 43 (Joseph 1352 1352 REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM

advocates have advocated the importance of using empirical findings to inform pol- inform to findings empirical ofusing the importance advocated have advocates the legiti- of understanding our to vital is ofresearch body broad The icy choices. philosophies. punishment various macy the of Socialpsychological Processes Underl Processes Socialpsychological tive-taking, ego maintenance, and emotion have played a role in informing our un- our informing in a role played have emotion and maintenance, ego tive-taking, punish. beings human how and why, when, of derstanding Sterelny et al. eds., et al. Sterelny Punishment project posits how things how posits project tive 42938-lcb_24-4 Sheet No. 113 Side B 02/02/2021 10:18:46 B 02/02/2021 113 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 114 Side A 02/02/2021 10:18:46

. 68 see see An EV see R , 41

biased L. Q. 534, 534, Q.

. ONSUMER Q. 53, 53

. C

AVIS HIL D HIL

. , 24 , 24 J. , 67 P AC or heuristics that are or heuristics ed that white college ed that white college

, 37 U.C. 70 accurate decisions, , 99 P , 99 We make mistakes be- 67 it. When Being in a Positive Mood Mood Positive a in When Being This bias persists even when we reject 66 Daniel S.Nagin & Greg Pogarsky, ly result in less vel control—when they lack the cognitivelack the control—when they vel

itch to decision strategies see also Id. 2002 study which determin 2002 study . 208, 215 (2018) (finding that being in a positive positive a in being that (finding (2018) 215 . 208, skill at common tasks like driving or ability to get attitudes but racially-biasedattitudes implicit attitudes”); ES (2013) (finding that women, people of color, and

Cognitive Effort,Affect, and Choice R at 569; 569; at Id. iving, managing, productivity, and ethics). 1594–96 s influential

ONSUMER The Legal Regulation of Self-Serving Bias C

1579, Selective Incivility as Modern Discrimination in Organizations: Evidence Evidence in Organizations: Discrimination Modern as Incivility Selective

note 66, at 535 (pointing out535 that “[i]mplicit attitudes 66, at note . . . able are not . Implicit Bias, Moods, and Moral Responsibility Moral and Moods, Bias, Implicit note 66, at 53. , 45 J. , 45 though these heuristics “frequent these though GMT supra Am I a Racist? Implicit Bias and Ascription the of Racism supra M Moreover, we experience emotion as natural and correct in certain certain in correct and natural as emotion experience we Moreover,

69 Levy, 167, 171 (2003) (calling self-serving bias “the tendency for individuals to shade shade to individuals for tendency “the bias self-serving (calling (2003) 167, 171 , 39 J. , 39 Jordan Etkin & Anastasiya Pocheptsova Ghosh, Ward Farnsworth, Alex Madva, Madva, Alex Madva, See See See also See See These are just some examples of myriad influences on our behavior, of which which of behavior, our on influences myriad of examples some are just These 147, 148 (1997) (noting that “[a] consistent finding is that humans have limited cognitive cognitive limited have humans that is finding consistent “[a] that (noting (1997) 148 147, 70 69 66 67 68

. Lilia M. Cortina et al., Ellen C. Garbarino & Julie A. Edell, Edell, A. Julie & Garbarino C. Ellen M K RIMINOLOGY ES we are blissfully unaware, even as our actions reflect them and we justify and defend defend and justify we and them reflect actions our as even unaware, blissfully are we are unaware of its existence or when we explicitly explicitly we when or existence its of are unaware are submitted to potential employers . . . the minority candidates get fewer callbacks from from candidates callbacks minority fewer get the . . . are submitted potential employers to We are motivated by many situational factors that never even cross the threshold of of the threshold cross even never that factors situational many by motivated areWe consciousness. student participants had “anti-racist explicit want to what 568–69 (2003) bias567, (describing they self-serving believe as “[p]eople tend to having as themselves see people to for tendency a as be manifested can bias Self-serving believe”). a greater than average share in their level of judgments in a manner favorable themselves,” to and noting that “most individuals believe they are above average” in the areas of dr R (2018) (describing Dovidio’ John 2020] RETRIBUTION RETRIBUTION 2020] 1353 we hold. that attitudes and make we assumptions Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM

circumstances, without realizing how easily our emotions can be manipulated, and and manipulated, be can emotions our easily how realizing without circumstances, our choices. reactions influence affective our how profoundly Increases Choice Deferral Choice Increases 534–35 (2017) (noting that “when otherwise identical CVs of minority and majority applicants cause we think too highly of ourselves, although we rarely acknowledge this fact. this acknowledge rarely we although ourselves, of highly too think cause we also and Impact along with others,well as skewed as predictions—“that which is desired is thoughtlikely more to occur than that which is undesired.” particularly African American women uncivil reported work treatment at more than other groups); Neil Levy, Impulsivity and Bias, Self-Serving Cheating, Deterrence: of Investigation Experimental C mood can make unrelated decisions more difficult, and as a result, choice deferral increases); resources and allocate them judiciously” and “[a]s environments require more cognitive effort to process information fully, decision makers often sw implement,” easier to responses, and preference reversals”). potential employers and fewer invitations to interview,” identifying that “[t]here is good evidence endorse”). they with that conflict those attitudes harbour that many people also to be deployed at the personal level [but] rather they influence cognition in ways that escape in cognition level be they influence to [but] deployed rather at the personal conscious control”).conscious notes Levy that implicit behavior biases a disproportionate have effect on whenhumans cannot or do not exercise personal le “required are they because or load,” cognitive under or stressed, “tired, are they because resources to respond too quickly for effortful processing.” processing.” effortful for quickly too respond to C Y 42938-lcb_24-4 Sheet No. 114 Side A 02/02/2021 10:18:46 A 02/02/2021 114 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 114 Side B 02/02/2021 10:18:46 M K is is C Y This This why 72 on several several on rves; one is the Darley, Robinson, and and Robinson, Darley, 71 (2002). (2002).

t-deserts theory relies t-deserts theory 284

. nt an offender dese rcumstances suggesting that leniency is SYCHOL ich the focus is on an eye for an eye, or or an eye, for on an eye is focus the ich P

. by asking people to explain their psycho- their explain to people asking by OC S y we punish—we argue about argue y we punish—we which

Why Do We Punish? Deterrence and Just Deserts as as Deserts Just and Deterrence We Punish? Do Why note 23, at 599–600. 599–600. 23, at note 73 & The majority of this work is designed to deter- designed is work this of The majority 74 supra note 36, at 203–11. 203–11. at 36, note note 71, at 285 that jus (noting 71, note ERSONALITY ERSONALITY P

supra supra , 83 J. , 83

75 Kevin M. Carlsmithet al.,

, , Aharoni & Fridlund, Carlsmith et al., at 198.at Carlsmith and Darley,who havegenerated a great deal of the data in this area, See, e.g. See, See See, e.g. See, Carlsmith & Darley, Id. Describing the psychology of punishment has been the life work of Paul Rob- of Paul work life the been has punishment of psychology the Describing Recent research on punishment has deonto- focused specifically on contrasting on Recent research the vignette so that it is either relevant or irrelevant to each perspective. For example, the the example, For perspective. each to irrelevant or relevant either is it that so vignette the the thus and perpetrator, the of culpability moral the with concerned is retribution of theory vignetteadjustedthesuch moral culpability that is A retributivist low. either high or is will theorist deterrence committed a contrast, By accordingly. punishment her or his adjust would be byunmoved variable,relatively this and far more deterrence-related a sensitive to crime. of type particular the of frequency the as such variable arrangement. We create four versions of a vignette that describes an offense, and ask partic- ask 2 and 2 x a other in each against Our perspectives pits two prototypical design experimental offense, an describes that vignette a of versions four create We arrangement. [W]e modify . . . ipants recommendappropriatean to of punishment one those cases. for 74 75 71 72 73 at 198–99. 198–99. at factors that help people determine how much punishme that help determine people factors magnitude of harm and another is extenuating ci appropriate). most justified, but not whether we even understand our own attitudes. A descriptive descriptive A attitudes. own our understand even we whether not but justified, most conscious our animate that influences unconscious the much of explains project punishment choices Exploring attitudes towards punishment. how human around the and punishment behind motivations the understanding to vital is are created usefulness or destructivenessofpunishmentimpulses. our Carlsmithvarious created have scenarios considera- implicate designed certain to punish. to much how and whether to decide people asked have and tions Motives for Punishment for Motives Id. mine which ofminetwo justificationswhich these describes best ordinary citizens’ motivation 1354 1354 of most the punishing, to it comes When produce. they attitudes and the choices conversation assumes we know that wh REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM

inson, John Darley, Kevin Carlsmith, and their colleagues. and their Carlsmith, Kevin Darley, inson, John logical and utilitarian motivations. utilitarian and logical method circumvents the need to solicit self-reports, and is therefore impervious to to impervious is therefore and self-reports, solicit to the need method circumvents created bias self-reporting of problem the the ra- determine to outputs behavioral uses research the Instead, processes. logical preference. human drives that tionale describe the method this way: this way: method describe the when they choose to sanction another person. The studies focus on whether most studiesperson. most focus another sanction The on whether to when they choose wh in perspective, deserts a just adopt people a utilitarian deterrence perspective, in which the focus is on preventing future harms society. against 42938-lcb_24-4 Sheet No. 114 Side B 02/02/2021 10:18:46 B 02/02/2021 114 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 115 Side A 02/02/2021 10:18:46

853 note

852, supra supra

CIENCES Gary D. Sherman Canton,

S See 151, 155–57 (2012) (2012) 155–57 151, note 36, at 59 (noting (noting 59 at 36, note supra FFECTIVE A MOTION In other words, it may be that that be may it words, other In , 13 E , 13 Canton, . . . [N]ot only [are] they . . . linked to . linked to [are] they . . only . . . [N]ot persons other than the judge or agent’”) persons other agent’”) or than the judge 77 The automaticity of the fear reac- fear the of automaticity The 79 the adaptive function of “cuteness” in baby see also ANDBOOK OF H otion-specific behaviors, such as providing care” bodiment of Care: Prosocially Oriented Women Women Oriented Prosocially Care: of bodiment note 36. in persuasively . persuasively , supra note 23, 601–02 at (explaining that within psychological . . righteousness, and reprobation”—see and . . righteousness, . supra The Moral Emotions Fear—and the fight-or-flight response—is one of the most most the of one response—is fight-or-flight the Fear—and 78 ther of society as a whole or at leastas a whole or of society ther of Carlsmith & Darley, Moreover, assuming that the perfect experimental design could com- could design experimental the perfect that assuming Moreover, 76 operate strictly upon one dimension. one upon strictly operate Aharoni & Fridlund, For an explanation about how the emotions of punishment are distinctively moral See generally See Evolutionary biologists have theorized about Individual Differences in the Physical Em Physical the in Differences Individual The foundational human experience that manifests itself in retributivist rea- retributivist in itself manifests that experience human The foundational The challenge with this type of work is substantial, because it is difficult to to difficult is it because substantial, is work of type this with challenge The 79 76 77 78 M K when presented with cuteness. (citation omitted)); that “moral emotions are typicallythat “moral emotions articulated soning is primarily an emotional one. Psychologists have long theorized about the the about theorized long have one. Psychologists emotional anprimarily soning is signals are emotions particular, In humankind. of evolution the in emotions of role to chance best the individual the give that choices make to individuals that guide thrive. and survive pletely parse the two goals, there would remain the question of whether individuals individuals whether of question the remain would there goals, two the parse pletely life in real (finding that since emotional states are associated with subtle shifts in the motor system, emotions emotions system, motor the in shifts subtle with associated are states emotional since that (finding “may be associated with motor preparation for em emotions—“emotions of judgement of emotions—“emotions research on punishment, there is a difficulty disentangling retributive and consequentialist motives punishment). for even if we can determine that most individuals are more strongly motivated by a a by motivated strongly more are individuals most that determine we can if even also individuals these that possibility out the rule doesn’t that just deserts rationale, goal. utilitarian a to satisfy intend Retribution for Basis Emotional D. The

(Richard J. Davidson et al. eds., 2003)). 2003)). et al. eds., (Richard J. Davidson 2020] RETRIBUTION RETRIBUTION 2020] 1355 Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM know whether people who were motivated by one goal were also motivated by the the by motivated also were goal one by motivated were who people know whether based punishment decided have to appears who someone example, For other goal. deter to a desire by influenced been have also may motivation deserts a just upon crime. future basic examples ofadaptive emotive responses. animals. A positive and protective instinct that is aroused humans whensee is an a kitten creatures. young vulnerable harm that tells to emotional This is a cue us not reaction. emotion Young animals of many species have developed features that cause older animals to be less likely are “cuteness” with associate we that Features vulnerable. most are they when them harm to tion was essential to survival. When our ancestors were confronted with a charging a charging with confronted ancestors were When our to survival. essential tion was the interests of others,but .we . . feel that other people ought to share them”). (citing Jonathan Haidt, et al., et al., 36, at 59 (pointing out that “[o]ne defining criterion of a moral emotion is that it is ‘linked to the ei welfare interests or beneficial to the young animal, of course, but may also have prevented early humans from killing develop could into a worthwhile prey the food source. before prey too early, Respond to Cuteness by BecomingMore Physically Careful C Y 42938-lcb_24-4 Sheet No. 115 Side A 02/02/2021 10:18:46 A 02/02/2021 115 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 115 Side B 02/02/2021 10:18:46 M K C Y ON ON . UMAN Revising Revising H YMP S

. NT But, classical An Evolutionary Id. 209, 215 (2017) (2017) 209, 215 Ata more basic : , 8 O Crime, Punishment, Punishment, Crime, 82

Id. MOTION In fact, these emotions emotions these In fact, Taboo Trade-Offs: Reactions Reactions Trade-Offs: Taboo E ERSPECTIVES ON ERSPECTIVES . 255, 285–86 (1997). (1997). 285–86 . 255,

P 81 & When exploring these con- these exploring When 84 SYCHOL P

. OL A Cleansing Fire: Moral Outrage Alleviates OTIVATION OTIVATION VOLUTIONARY (referring to PhilipTetlock E. et al.,

E , 18 P , 18 , 41 M ain fear: intensity, novelty, evolutionary dangers, L.J. 501, 546 (2012) (“[I]t may be that the very very may be the that 546 (“[I]t (2012) 501,L.J.

in at 197. Examples of evolutionary dangers include , Id. MORY MORY . Additional potential stimuli that have an evolutionary basis Id When individualsmake decisions punishment, about note 71, at 286 , 61 E , 61 83 Alan Page Fiske & Philip E. Tetlock, . 25 (1996)). (1996)). . 25 Human EmotionsMultipurpose as Adaptations supra see also see SYCHOL P

. OC S

189, 190–94 (Robert L. Burgess & Kevin MacDonald eds., 2nd ed. 2005) (“Basic (“Basic 2005) ed. 2nd eds., MacDonald Kevin & Burgess L. (Robert 190–94 189, at 286–87; & Peter LaFreniere, Carlsmith et al., A. Keefer, Lucas & K. Rothschild Zachary Several different kindsof negative emotions havebeen shown to be power- See id. See See For an explanation of how the way individuals interact with others has been shown directly See See 80 . at 192. The presence of an infant’s caregiver provides a secure base for the infant to the infant for base a secure provides caregiver infant’s an of The presence 192. . at The emotion dubbed “moral outrage” by modern psychologists has also been has been also psychologists by modern outrage” “moral dubbed The emotion 82 83 84 81 80 EVELOPMENT ERSONALITY ERSONALITY and the Psychology of Self-Control conducted by psychologist Phil Tetlock and his colleagues on moral outrage found found outrage moral on colleagues his and Tetlock Phil psychologist by conducted determinations. punishment to precursor universal a nearly be it to ful motivators for human behavior. Our society and relationships with one another another one with relationships and Our society behavior. for human motivators ful emotions. human of range extensive an of source a rich are Guilt and Buffers Threats to One’s Moral Identity Moral One’s to Threats Buffers and Guilt related to a previously experienced emotion, see Rebecca Hollander-Blumoff, Hollander-Blumoff, Rebecca see emotion, experienced previously a to related Perspective on the Development of Fear of the Development on Perspective are us allow in to function what society. their feelings of moral outrage influence their choices. their influence outrage moral of feelings their

the Value Pluralism Model: Incorporating Social Content and Context Postulates P behavior that society would like individuals to control, the natural consequence of their violent violent their of consequence the natural control, to individuals like would society that behavior action and that the experiencing they are emotion negative the to connected is directly impulse, D species-specific core, [are] . . . human emotions such love, as joy, anger, fear, and sadness 1356 1356 to mauled and being living between difference the mean could hesitating bear, death. REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM called an “ought force,” and it is the basis for retributivist punishment. Research Research punishment. retributivist for basis it is the and force,” “ought an called level, anger is an important component of moral outrage, which in turn, drives re- drives turn, in which outrage, of moral component important an is anger level, decision-making. tributivist combinations of “biology and experience” such as “pain, beingleft alone, sudden changes in stimulation, and rapid approach.” affect If itself. violence of is the act state emotional negative their ameliorate will they believe self-control, does improve crime may be trump to violent explained as an effort regulation some mood.”). conditioning alone is insufficient to account for allfear stimuli and according to some scholars, at least five general principles are required to expl include “fear of strangers; separation anxiety and fear of being alone; fear of open places, heights, spiders.” or snakes of fear and the dark; of fear support; of loss or falling, to Transactions that Transgress the Spheres of Justice of Spheres the Transgress that Transactions to motivational systems that organize and behavior development across life span.”). [a human’s] behavior. regulate to can contribute how fear of provide infant attachment an example on Studies id See the infant’s occur, should threatening something the environment—if explore confidently attention will be directed to the caregiver’s face, and if the caregiver expresses fear, a fear response will be classically conditioned in the infant, event, to that after a single trial. social stimuli, and conditioned stimuli. 42938-lcb_24-4 Sheet No. 115 Side B 02/02/2021 10:18:46 B 02/02/2021 115 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 116 Side A 02/02/2021 10:18:46

, . 89 L.

OC . 563, 563, S

. ICH & personal personal ULL B

. , 89 M , 89 SYCHOL ERSONALITY ERSONALITY Given that moral moral that Given P

. 87 NTELLIGENCE OF THE THE OF NTELLIGENCE I OC , 33 P , 33 S

HE & T

: note 40,2181. at Why Individuals Protest the Perceived the Perceived Protest Individuals Why For example, according to legal legal to according For example, supra 91 EELINGS ERSONALITY ERSONALITY F “[m]oral outrage can result when powerful a specific responding mode to a situation of reflecting a desire to restore justice by by justice desire to restore a reflecting victim of the moral violation, moral out- moral violation, moral the of victim ends are simply stated and fairly easy to to easy and fairly stated are ends simply UT , 24 , 24 P Markel, The outrage was also positively related to note40, at 2181. G 85 se to morally reprehensible behavior and in- and behavior reprehensible morally se to

, Aarti Iyer et al., et al., Iyer Aarti supra see also see “People respond to transgressionsmoral with gut- Scholars find that moral outrage promotes positive positive promotes outrage moral that find Scholars

Sober Second Thought: The Effects of Accountability, Anger, and and Anger, Accountability, of Effects The Thought: Second Sober 86 note 84, at 209. 88 90 see also IGERENZER Shame, Culture, and American Criminal Law Markel, Moreover, Massaro points out the parsimonious nature nature parsimonious the out points Massaro Moreover, G note 87, at 287, note (arguing that at moral outrage and dehumanization are 92 supra The Roles of Dehumanization and Moral Outrage in Retributive Justice supra see also see ERD note 91, at 1892; G supra . 572, 574 (2007) (noting that “emotions motivate individuals to take action [and [and action take to individuals motivate “emotions that (noting (2007) 574 . 572, 211–12 out (pointing (2007) that at 570. 570. at see also ULL Bastian et al., Toni M. Massaro, Jennifer S. Lerner et al., et al., S. Lerner Jennifer ; B

. note 87, at 584 (noting that in the context of a country’s transgression, emotions can See See Massaro, See id. See Brock Bastian et al., Keefer, & Rothschild Id. ONE, Apr. 23, 2013, at 1; at 2013, 23, Apr. ONE,

This ought feeling—the automatic emotional reaction and feelings of satisfac- feelings and reaction emotional automatic This feeling—the ought , [which] is similar, yet conceptually distinct from moral outrage.”). moral is similar, distinct from yet conceptually , [which] 90 91 92 85 86 87 88 89 . 1880, 1892 (1991); 1892 . 1880, supra M K NCONSCIOUS EV SYCHOL people react to, and reason about, morally relevant behavior.” relevant morally about, reason and to, react people moral outrage in third-party observers. third-party in outrage moral level emotional responses and these emotional responses play a central role in how how in role central a play responses emotional these and responses emotional level people . . . place their family interests over their loyalty to their country, such as when the news news the as when such country, their loyalty their to over familyinterests their . place . . people because are linked specific emotions distinct and to action intentions”). goals that] [d]iscrete emotions orient individualsthat] [d]iscrete toward subsequent punitive behavior. punitive subsequent AuthoritarianismAttributions on Responsibility of PLOS Further, moral outrage arises in respon in arises outrage Further, moral outrage is often expressed on behalf of the the of behalf on expressed often is outrage emotion a “prosocial as is described rage fighting [for] the victimized.” the [for] fighting helpexplain why people participatespecific in opposition strategies, and that “shame is a distinct transgressions the one’s of country”). perceived to emotional response U R Transgressions of Their Country: The Role of Anger, Shame, and Guilt and Shame, Anger, of Role The Country: Their of Transgressions P tionafter punishing transgressors—has been defended aslegitimate a for basis action good. feels it upon acting that on the ground emo- deep it “satisfies that is retributivism of the attraction Massaro, scholar Toni instincts.” intuitive tional, “its saying, objective, retributivist of the of feelings . . . elicit[s] insult harm or illegitimate of be the victim to oneself (“Perceiving 2020] RETRIBUTION RETRIBUTION 2020] 1357 asso- factors between a found relationship and Tetlock Goldberg, Lerner, nections, as culpabilitydeserts,ciated such just of with a transgressor,and expressions later of Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM associated and that morally outraged individuals view offenders as unlikely to be rehabilitated). 564 (1998). (1998). 564 social outcomes and is associated with behaviors and is associated with behaviors social outcomes such as protesting, po-supporting punish of liticalto action, desiring transgressors behalf on victims. and innocent severity. fluences punishment spread that out of all U.S. senators and congressmen only one had a son fighting in Iraq”); Iyer et al., anger C Y 42938-lcb_24-4 Sheet No. 116 Side A 02/02/2021 10:18:46 A 02/02/2021 116 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 116 Side B 02/02/2021 10:18:46 M K C Y , 38 lly prompts people to hoc rationalizations.”) Luck,Culpability, andthe . 709, 723 (2018). (2018). . 723 709, EV R

other community members. Fourth, L. Guilty Feelings, Targeted Actions Targeted Feelings, Guilty note 40, at 2180–81 (explaining that tional calculation [a]ffective [and that] note 87, at 572 (noting that “[a]lthough LARK LARK supra C

& supra llowing characteristics: “First, retributivists argue lt specifically and strategica y them, offer plausiblepost Kenneth Einar Himma, EWIS EWIS Markel, Interestingly, implicit in this assertion is the the is assertion this in implicit Interestingly, cf. or the behavior of see 94 . 607, 615 (2012) (finding that “[g]uilt does not lead to to lead not does “[g]uilt that (finding (2012) 615 . 607, , 22 L , 22 ULL rior to those based on ra B

. Cynthia E. Cryder et al., et al., Cryder E. Cynthia note 14, at 165 (noting that scholars have suggested that “emotional “emotional that suggested have scholars that (noting 165 at 14, note SYCHOL note 91, at 1892; 1892; at 91, note note 91, at 1892; 1892; 91, at note P Although traditionally, the law has been somewhat ambivalent ambivalent somewhat has the law been Although traditionally,

. see also see also 95 supra OC supra supra S

& In other words, when motivated by this force, “[w]e punish in order to order in punish “[w]e force, by this when other words, In motivated Krebs, Krebs, 93 Massaro, Massaro, See During the last decade, the secular process of restricting the space of emotions emotions space of the restricting of secular process decade, the last the During back emotions bringing towards turn a have taken to seems realm penal the in in. A process of ‘re-emotionalization of law’ or the ‘reassertion of emotionality Although moral outrage is the emotion most closely associated with retributiv- associated closely most emotion the is outrage moral Although Negative emotions, such as those associated with transgressions, are powerful powerful are transgressions, with associated those as such emotions, Negative 93 94 95 ERSONALITY ERSONALITY increased generosity toward all . . . it increases generosity toward . those whom one has wronged. increased generosity. toward all Retributivist Justification of Punishment of Justification Retributivist Massaro argues that retribution possesses the fo because the wrongdoer by the harm inflicted counteract is justified the to that punishment to right set order in crime, a for redress proper eye is an an eye for Second, it. deserves wrongdoer in is uninterested it that in is nonconsequentialist justice retributive Third, balance. the moral influencing the offender’s future behavior retributivismby presupposes criminal (citations actor.”) free will the omitted). 1358 1358 secure.” accom- to easier is Revenge or contain. rehabilitate, deter, to not the harm, avenge plish than objectives.” these other and desirable are judgment that both and drives simplicity satisfaction emotional of REVIEW LAW & CLARK LEWIS an- over scheme particular punishment one sufficientchoosing justify to objectives other. 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM ism, directly connected to a just deserts punishment rationale, other emotions be- other emotions rationale, punishment deserts a just to connected directly ism, context. and the violation upon depending come relevant, Connection Emotion-Action E. The about the role of emotion in penal theory and practice, recent trends suggest the the suggest trends recent practice, and theory penal in emotion of the role about an with along justice, in criminal for emotion role larger of a acceptance widespread out, pointed has Karstedt Suzanne As responses. affect-based of acceptance explicit (citations omitted); reactions may be strategically supe reactions such as sympathy, disgust, and righteous indignation should exert an immediate effect moralon decision-making processes [p]eople [though] should have difficulty justifying decisions derived in these ways, if called and on to justif and only when [they] can notice the gesture . . .” therefore not prompting the “general moral the “general moral prompting not therefore .” . . the gesture can notice [they] when and only motivators. Research has revealed that disgust, anger, and fear serve as a basis for basisfor a as fear serve and anger, disgust, that has revealed Research motivators. decision-making. P ‘cleansing’ in response to transgressions;” “gui citizens often agree with their government’s actions . . .” when a policy is judged to be immoral to be immoral judged is policy a when .” . . actions government’s their with agree often citizens repair specific social transgressions”); Iyer et al., or harmful, “[i]ndividuals express opposition to such perceived transgressions by participating in political activities”). 42938-lcb_24-4 Sheet No. 116 Side B 02/02/2021 10:18:46 B 02/02/2021 116 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 117 Side A 02/02/2021 10:18:46 299, 299, The Role of (1996). (1996).

Mar. 11, 2015, 2015, 11, Mar.

1413 RIMINOLOGY

. 30 (2004) (“Most (“Most 30 (2004) C Anna Sircova et al., CI ONE,

S see also see Hillary Brown, Sensitive New-Age Laws: The The Laws: New-Age Sensitive , PLOS OGNITION C

HEORETICAL IOLOGICAL see also & B (2011). (2011).

: , 6 T 194 RAIN Irrational Choice Behavior in Human and L. 35 (1996). 35 (1996). L. For example, human cognitive and so- For human and example, cognitive

. mmonalities in human behavior, partic- behavior, in mmonalities human 99 , 55 B OC 227, 227–28 (2018); (2018); 227–28 227, The Somatic Marker Hypothesis and the Possible S RANSACTIONS

T J. ROTECTION

Somatic markers are emotional reactions that that reactions are emotional Somatic markers . P L ’ 98 HIL NT Kathy Laster & Pat O’Malley,Kathy Laster TheRole of Emotion in Decision-Making: Evidencefrom DULT rough some type ofrough some type cost-benefit analyses.The influence of OGNITION C , 24 I , 351 P , 351 see also see also , 13 J. A Emotions and Criminal Justice Criminal and Emotions NIMAL The former notion that rational, effortful decisions are exclu- are decisions effortful rational, that notion former The 97 Antonio R. Damasio, , 21 A , Antoine Bechara,

96 Bonnie M. Perdue & Ella R. Brown, See generally See See Susanne Karstedt, e.g. See, in law’ spread around the globe, and has changed the criminal justice system system justice criminal the has changed globe, and the around spread law’ in in many ways. The‘return of emotions’ to criminal justice and penal policies has occurred in two arenas: the emotionalization of public discourse about crime and criminal justice, and the implementation of sanctions in the criminal justice system that are explicitly based on—or designed to arouse—emotions. deci- of emotional the recent acceptance beneath lurking the debates One of Behavioral researchers co have studied 98 99 96 97 M K has come light. to theories of choice assume choice of that decisionstheories derive an from assessment outcomes of future the of various options and alternatives th emotions on decision-making is largely ignored. The studies of decision-making in neurological patients who can no longer process emotional information normally suggest that people make judgments not only by evaluating the consequences and their probability of occurring, but also and even sometimes primarily at a gut or emotional level.”); Emotion in Decision-Making 301 omitted); (2002) (citation Reassertion of Emotionality in Law cial reasoning rarely follow rules of logic. People are not terribly good at solving at solving good terribly not are People logic. of rules follow rarely reasoning cial Simulating Irrational Human Behavior to Prevent Resource Depletion at 1, 3, 14. 2020] RETRIBUTION RETRIBUTION 2020] 1359 Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM

support rational decision-making. A primary function of somatic markers is to per- to is markers somatic of function primary A decision-making. rational support sively the domain of emotion-free brain activity has been challenged by the im- the by challenged been has activity brain emotion-free of domain the sively Dama- Antonio of work in the recognized as in cognition, emotion of role portant influential most the among been has Hypothesis” Marker “Somatic whose sio, years. in recent of emotion theories sions about punishment is the balance between natural human impulses and the the and impulses human natural balance between is the punishment sions about decision-making in emotions of role vital the Recently, impulses. these of restriction Functions of the Prefrontal Cortex Neurological Patients with Orbitofrontal Damage Nonhuman Primates mit quick and automatic preselection of the relevant choice alternatives. Somatic Somatic alternatives. choice the relevant of preselection automatic and mit quick of these accuracy the but decision-making, of human the efficiency increase makers accu- and their context to the their appropriateness upon depends cues affect-based other to Similar choice. an appropriate toward decision-maker the directing racyin au- other Like decision-making. streamline they shortcuts, cognitive frugal and fast infallible. are not they processes, cognitive tomatic many that discovered have and formation, attitude and in decision-making ularly irrational. looking end up human patterns C Y 42938-lcb_24-4 Sheet No. 117 Side A 02/02/2021 10:18:46 A 02/02/2021 117 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 117 Side B 02/02/2021 10:18:46

, M K 100 C Y , 36 173, 179 179 173, an emotional

: 103 The Prehistory of of Prehistory The , to help achieve a , to help achieve a at 185 (explaining id. id. In order to be sat- be to order In

ERSPECTIVES 102 P See

Members of the human race, race, the human of Members motivate behavior , Part IV. , Part note 68. UMANISTIC 104 H infra supra the areas of] driving, managing, productivity, and Thus, we are more likely to recall happy memories happy memories recall to likely more we are Thus,

U.S. 6429, 6429 (2009) to note the inference drawn drawn inference the note to (2009) 6429 6429, U.S.

. note 23, at 618. Evidence that people’s retributivist Farnsworth, Farnsworth, CI S

note 68, at 171 (calling self-serving bias “the tendency for . supra CAD EUROSCIENTIFIC AND AND EUROSCIENTIFIC supra generally Functions of Human Emotional Memory: The Brain and Emotion A

I) 45, 50 (2015) (citing Jean-Jacques Hublin, Hublin, Jean-Jacques (citing (2015) 50 45, I) N L

People routinely exhibit social biases of which they are are they which of biases social exhibit routinely People ’ : See 80 (noting that because they linger “for minutes or longer after a after a longer minutes or “for linger that because 80 (noting they 101 AT – occurred, emotion may continue to N

. note 66, at 53 (describing Dovidio’s study on white college students with with students college white on study Dovidio’s (describing 53 at 66, note ROCESS P at 179– ROC UPPLEMENT supra (S

id. id. . Aharoni & Fridlund, Nagin & Pogarsky, EMORY EMORY Edmund T. Rolls, , 106 P III. RETRIBUTION AS AN EVOLUTIONARY ARTIFACT ARTIFACT EVOLUTIONARY AN AS RETRIBUTION III. M Madva, See “One illustration ancestral of prosociality relates of record the fossil the existence from to See See See SYCHOL The adaptive function of moral outrage can be traced back to early humans, humans, to early back traced be can outrage moral of function adaptive The P HE

102 103 104 101 100 . T OL that “[w]hen are made the decisions emotional by the unconscious system,the rational, conscious with causes little having the original do system may confabulate an explanation the decision to for of the behavior”). route that can operate unconsciously, and a rational, conscious route. Both of these produce produce that unconsciously, route. these of route can operate conscious Both and a rational, memory. emotional of types different for systems processing different ethics”) (citations omitted). anti-racist explicit attitudes, but racially biased implicit attitudes). individuals believe they aboveaverage are [in reinforcinghas stimulus goal or goals”). Some scholars suggest that there are two routes for making decisions unaware and which they whole-heartedly reject on principle. on reject whole-heartedly they which and unaware Their memories are poor and they are often influenced by emotions that cause them them cause that emotions by influenced often are they and poor are memories Their interest. against to act in by archaeologists that someone must have cared for these disabled individuals). instincts fail to result in optimal outcomes is discussed hominine skeletal remains dating back as far as 1.77 million years ago showing signs of both severe physical disabilities and years of survival with those disabilities.” Michael Bang Petersen, in Politics Biases and Heuristics of Structure and On Origin the Psychology: Political Evolutionary P individuals to shade judgments in a manner favorable to themselves,” and noting that “most see memories, humans lived in increasingly largegroups. social in increasingly humans lived of variety wide a to exhibit evolved have species, plant and animal other all like (Suzanne Nalbantian et al. eds.,2011) (noting that a human’s current mood “can affect the or memories. events of evaluation cognitive of functions more For depressed.”). we are when memories depressing and happy we are when 1360 1360 self-centered. and counterproductively unjustifiably optimistic are they puzzles; REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM and the evolutionary need related to the requirement of cooperation as these early early these as cooperation of requirement the to related need evolutionary the and that the instincts that lead us to be retributivists are irrational or fail to comport comport to fail or irrational are the reflects best policy model system a on retributivist our penal designing that isfied retributivists minimally, or “correct,” are instincts moral our that be evidence have should we choice, to us lead that evidence have hand, we other on the If, act on them. to us entitles them that having instincts the that model. this reject should we then values, and goals agreed-upon with Compassion 42938-lcb_24-4 Sheet No. 117 Side B 02/02/2021 10:18:46 B 02/02/2021 117 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 118 Side A 02/02/2021 10:18:46

, , 1, . 219, . 219, UMAN

H ATESON B OMPASS C

. SYCHOL P “In sum, the the sum, “In ATRICK 107 rs’ inclusivers’ fitness, P SYCHOL

Hand of God, Mind of Mind of God, of Hand P The Behavioral Immune Immune The Behavioral ERSPECTIVES ON P VOLUTIONARY , 4 E , 4 An Evolutionary Reconceptualization ERSONALITY ERSONALITY P

or is to enhance is to acto or . 108 ly on the external form of our distant our distant of form external on the ly OC VOLUTIONARY ral behaviors by are activated particular kinds E in 67 (2017) (“Finding a compatible partner is an , 12 S , 12 Dennis Krebs, , Joshua M. Ackerman et al., see Dominic Johnson & Jesse Bering, see also VOLUTION see E AND AND , Sex, Culture, and Biology the of Rape:Toward Explanation and Prevention note 105, at 833; 833; at 105, note note 105, at 833. 105, note an example For at discussing inbreeding of the genetic costs note 105, at 833; 833; 105, at note . 827, 833 (1999); (1999); 833 . 827, 243, 250 (Robert L. Burgess & Kevin MacDonald eds., 2nd ed. 2005) (pointing (pointing 2005) ed. 2nd eds., MacDonald Kevin & Burgess L. (Robert 243, 250 Behaviors that ensured the greatest chance of survival of our ancient ancient our of survival of chance greatest the ensured that Behaviors EVELOPMENT supra supra supra EV D R In the case of human beings, behavioral adaptations are highly contin- highly are adaptations behavioral beings, human of case In the 106

, L. 105

. Jones, Jones, Owen D. Jones, D. Owen Jones, Jones, In order to understand how our retributivist instincts evolved, evolutionary evolutionary evolved, instincts our retributivist how understand to In order ALIF 107 108 105 106 3 (2018) (finding that “reactive and proactive behavioral immune responses help protect at 251 (noting that some evolutionary at psychologists and scholars believe that “mental M K EVELOPMENT EHAVIOUR – of problems and their function is to process information in ways that give rise to particular kinds of decisions”). id. moral judgments and rise to mo structures that give defined in terms of the number of replicas of their genes they contribute to future generations”); future the number to ofdefined in terms of replicas their of they contribute genes of Kohlberg’s Model of Moral Development arising from recessive genes as well as the results of outbreeding, see species provides valuable insight into which behaviors were advantageous, and and advantageous, were behaviors which into insight valuable provides species on the lived both humans modern and Neanderthal example, not. For which were System: Current Concerns and Future Directions Future and Concerns Current System: individuals, their offspring, and slow the rate of horizontal disease transmission within groups”). 87 C B species do different of part[m]embers important reproductive of behaviour. . in many. animals 2– D ultimate most of that “the goal (butout all) not behavi that humans will respond to certain situations in predictable ways. certain situations in predictable to respond will that humans our of success the reproductive affected aand behavior substantially more directly pro- evolutionary of effect likely the greater the nonhuman, and human ancestors, itsof incidence.” patterns cesses on the current 2020] RETRIBUTION RETRIBUTION 2020] 1361 predispositionsbehavioral designed increasefuture to ofofsurvival gen- chance the erations. and meta-cognate to ability our of because species other than for so gent—more re- exact to predisposition the suggests that Evidence reasoning. abstract in engage venge for transgressions others’ moral of reflect of yearstens thousands of natural se- of effects accumulated the notes, Jones Evan biologist As evolutionary selection. on “not operate traits certain of favoring lective processing information and neural architecture brain’s on the also but ancestors, pathways.” probability the increase that intuitions automatic as internalized became ancestors Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM

220 (2006) (noting that “[c]ooperation is widespread among mammals, birds, insects, cells, cells, insects, birds, mammals, among widespread is “[c]ooperation that (noting 220 (2006) microscopic organisms, and different organs of the body”). behavioralists turn to fossil records revealing early development of social order in in social of order development early revealing turn to fossil records behavioralists related of structure social the Comparing ancestors. and human ancient humans Man: Punishment Cognition and the Evolution in of Cooperation not make good mates [and] too much mates [and] can also reproductive reduce make good inbreeding success.”). too not C Y 42938-lcb_24-4 Sheet No. 118 Side A 02/02/2021 10:18:46 A 02/02/2021 118 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 118 Side B 02/02/2021 10:18:46

M K Id. Id. 112 C Y 204, 204, S AND among

U Id. he benefits of of benefits he interests. Such . T ETWEEN ETWEEN B note 105,220 at AP most people consider G EUROLINGUISTICS input and to construct 26–27 (2013) (pointing supra N

OGS D , 43 J. AND THE 838, 839 (2010). (2010). 839 838, , Cooperative living allowed early early allowed living Cooperative (recognizing that “cooperation foster their biologicalfoster

ATURE EASON 111 ENIUS OF OF ENIUS R

G , as groups grew largermore and complex. Johnson & Bering, HE , 464 N , 464 Because there are some associated costs, costs, associated are some there Because T see ability to process sensory of others, immoral; and of others, immoral; and

, “[W]e developed the cognitive, linguistic, linguistic, cognitive, the developed “[W]e 113 MOTION Most people consider selfish behaviors, selfish defined as people consider Most E 114

note 105, at 220 at 105, note : a larger brain are obvious,” withbut costs such as come OODS note 18, at 37–39 (noting that this couldcost involve W RIBES supra supra T supra Modern humans gained a survival advantage over Ne- over a advantage survival gained humans Modern , Language and Human Evolution ANESSA ANESSA 109 ORAL ORAL V As early humans expanded their social groups to include a include to groups social their expanded humans As early Stranger from Siberia from Stranger

& note 106, at 253 (“Selfish preferences pose a serious problem for the the for problem serious a pose preferences (“Selfish 253 at 106, note 110 , M note 106, at 252 (noting that homo sapiens are “among the most social” social” most the “among are sapiens homo that (noting 252 106, at note ENRICH H ARE

supra H supra & REENE G Johnson & Bering, RIAN Krebs, Krebs, Krebs, Krebs, Richard G. Klein, B ENRICH ENRICH But see see But OSHUA J See H Terence A. Brown, See See is still not understood”). 24 (2013) (noting that the phrase “altruistic punishment” reflects the fact that punishment punishment fact that the reflects punishment” “altruistic that the phrase (noting 24 (2013) see also 114 112 113 109 110 111 HEM of the species in the animal kingdom). Further, “mechanisms that dispose animals to aggregate of othermembers species [interspecies . . and interact with other members. of their species, and (“Sometimes cooperation results in mutual payoffs to all actors involved, and can therefore be be therefore can and involved, to payoffs actors all in mutual results cooperation (“Sometimes resources, time, or exposure to some threat); some to exposure time, or resources, cooperative tendencies only evolved biologically because they conferred a “compet- a conferred they because biologically evolved only tendencies cooperative cooperators.” the on advantage itive is costly individual for the who punishes in addition to the who one is punished) out that Neanderthal become predator never could top out because their social groups were too small). Interspecies “[c]ooperation occurs when an individual incurs a cost to provide a a provide to a cost incurs individual an when occurs “[c]ooperation Interspecies T 1362 1362 Earth yearsago. 450,000 REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM 207 (2017)(noting that average, “[o]n Neanderthal brains werelarge as or larger than those of

humans to harness the hunting, gathering, protection, and childbearing skills of of skills childbearing and protection, gathering, the hunting, harness humans to of the species. success overall the optimize order to in the group of members many growing number of individuals, they gained an increasing advantage over other so- over they an gained advantage increasing individuals, of growing number cial apredator. species, top becoming eventually easily understood as each pursuing their own selfish interest. However, other instances of are more surprising,cooperation because individuals despite help others incurring a cost in doing so.”); . . . . mechanismsevolution cooperative of anderthal when the former began expanding its social groups to include greater greater to include groups social its expanding began former when the anderthal numbers of members. curtailing selfish activities by punishment are often shared by a larger group that includes but is is met, punishment this condition becomes the punisher; when restricted to altruismnot an act of scholars However, fitness. own one’s of expense the at others of the fitness increases it because cooperation] evolve when helpanimalscooperation] the mechanisms mechanisms may help animals enhance their inclusive fitness in several ways.examples, As individuals who band together may beless susceptible to predators than more solitary individuals, and groups may be able to hunt larger game than individuals could kill on their own.” living humans [and that] [t]he benefits of benefit for another person or people.” or person another for benefit more effective mental models of the physical effective mental and social environment,”more models of the would which contribute to of socialmore effective representations relationships difficulty giving birth and consumption ofbody’s a larger metabolic percentage resources.) of the However, a largerbrain comes with a “greater cooperative behaviors, defined one’s as fostering interestsin ways that the foster interests others, of moral.”). fostering one’s own interests at the expense humans 42938-lcb_24-4 Sheet No. 118 Side B 02/02/2021 10:18:46 B 02/02/2021 118 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 119 Side A 02/02/2021 10:18:46

see also see ECIPROCITY ECIPROCITY R UMAN UMAN H

: Behavioral byproducts byproducts Behavioral note 18, at 40 18, (pointing out note at 119 PECIES S supra , mans can learn to produce stone tools ation, coalitions, collective decision decision collective coalitions, ation, ENRICH OOPERATIVE H

conflict, family, food sharing, group liv- group sharing, food family, conflict,

& A 120

, from that of nonhuman primates in scale and nature INTIS Early human environments demonstrate that that demonstrate environments human Early ENRICH G note 115, at 3. 3. at 115, note H Over the course of human history, humans created created humans history, human of course the Over 115 note 115, at 3. For an example of this type of cooperation, see see type cooperation, this of of example an 3. For 115, at note 117 see see supra supra ERBERT , H supra supra

, & INTIS note 104, at 49. 49. at 104, note 48–49. at 104, note G

INTIS For example, cooperation in hunting, “whereby different indi- different “whereby in hunting, cooperation example, For & 196 (2011); 196 G

OWLES 116 supra supra supra & B OWLES note 110, at 213 (noting that “[l]iving hu at 50. B Id. Id. OWLES VOLUTION AMUEL The expansion of patterns of interaction within and between members of members between and The expansion of patterns of within interaction E B Petersen, See Petersen, Id. S 118 supra TS TS As the groups became larger, individual relationships necessarily became more more became necessarily relationships individual larger, became the groups As I 116 117 118 119 120 115 M K . at 196 (noting that “[h]uman reliance on the meat of large hunted animals [developed along tenuous; less direct and repeated contact between any given two members of a group a group of members two given any between contact repeated and direct less tenuous; non-cooperation and free-loading for potential the a result, As frequent. less became of hyper-sociality have been examined by anthropologists, who have compiled de- compiled have who anthropologists, by examined been have of hyper-sociality that human cooperation varies substantially of variability). social and physical environments exhibiting similar or greater benefits of coopera- of benefits greater or similar exhibiting environments physical and social informationindustry, warfare, and tion, agriculture, modern irrigated including systems. id [o]rganizing and sharing the returns to successful. hunting” because of the high risk, . . with] A. Larger GroupRequired SocialA. Larger More Size Cooperation test to group the in all members with interact directly to Opportunities increased. maintain that punishment is motivated by psychological very different mechanisms—anger and moral outrage—than the helping behaviors typically associated with altruism: empathy and sympathy. 2020] RETRIBUTION RETRIBUTION 2020] 1363 altruis- allowed that ways in interactions social our capacities to structure and other proliferate.” to tic cooperators Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM AND groups has been termed the “hyper-sociality” of humans. of “hyper-sociality” the termed been has groups making, etiquette, rituals, and and weapons.” making,rituals, etiquette, tailed records of universal traits that have been found in every human society stud- human society every in found that have been traits universal of records tailed “territoriality, include behaviors These ied. cooper dominance/submission, ing, empathy, “members of groups that sustained cooperative strategies for provisioning, child- provisioning, for strategies cooperative sustained that groups of “members againsthostile neighbors, defending sanctioning rearing, non-cooperators, non-coop- of members over advantages significant had information . . sharing . and groups.” erative viduals perform different, well-specified roles,” allowed for an increased reliance on on reliance an increased for allowed roles,” well-specified different, perform viduals source. calorie a as game large Klein, entirelyby imitation,learn more but reliably they when and efficiently are instructed they verbally”). which was mitigated by sharing information about hunting and other valued resources); C Y 42938-lcb_24-4 Sheet No. 119 Side A 02/02/2021 10:18:46 A 02/02/2021 119 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 119 Side B 02/02/2021 10:18:46

M K 126 127 C Y Given what scholars scholars what Given The growth of the size size the growth of The 125 reciprocity, where coop- 121 s of groups cannot groups of s interact with indirect 3 (2012) (noting that reciprocal (2012) 3 altruism

. CI in increasingly larger groups, direct con- groups, direct larger in increasingly S RAIN B Accordingly, the success of small groups could could groups small success of the Accordingly,

& 123

note 14, at 155 (“Member 155 14, at note note 18, at 48–51. 48–51. 18, at note 51. at 18, note . Reciprocity: Weak or Strong? What Punishment Experiments Do Do Experiments Punishment What Strong? or Weak Reciprocity: note 14, at 155 (noting that “[m]echanisms have evolved in in evolved have “[m]echanisms that (noting 155 at 14, note supra supra supra EHAV at 14–15. at , , supra “Direct reciprocity depends on direct, ongoing experience experience ongoing direct, on depends reciprocity “Direct Id. , 35 B note 10, at 14–17 (pointing out that humans evolved in small groups note 14, at 155–5614, at note (describing the “evolution of altruism,” which 122 ENRICH ENRICH Krebs, Krebs, H H

supra supra Therefore, “we should not expect direct reciprocity to be the pri- the be to reciprocity direct expect not should “we Therefore, , & & see Francesco Guala, 124 at 50–51; Krebs, Krebs, 50–51; at at 48; at Krebs, Krebs,

OFFMAN ENRICH ENRICH ENRICH see also see H H Id. H Id. See See id. See Prior to evolving to live cooperatively live to evolving Prior to 127 122 123 124 125 126 121 induces animals to “behave in biologically altruistic ways” to enhance fitness, and noting that the between interacting individuals.” interacting between of mostly related individuals, which gives humans “enormous survival advantages, and our to ties emotional deep have we . . . another. one with cooperate to incentives . . . therefore Because ancient humans lacked technologies that could reduce the immediacy of of immediacy the reduce could that technologies lacked humans ancient Because organized no agency, enforcement law no button, nuclear no was the act—there of cooperative groups diminished opportunities for direct reciprocity (“if you help help you (“if reciprocity direct for opportunities diminished groups of cooperative you”). help will me, I frontation was the primary way one individual would hold another accountable. (and Do Not) Demonstrate evolution of altruism occurred in at least three ways: sexual selection, kin selection, and group selection); many species that dispose them to formmany species that dispose them to social with bonds and support whom their fitness on those is dependent, such as mates, offspring, parents, siblings, members friends, exchange partners, or of coalitions and groups”). is “the idea what that seems in thelong might run altruistic actually short in the be self-serving term [and that] [o]rganisms that help may be others indirectly maximizing their own fitness, if the future”). in be reciprocated to going is help their 1364 1364 diminished. to pact the social and adherence their loyalty REVIEW LAW & CLARK LEWIS 24.4 [Vol. ‘association their fill to members’ interest group in is it [and] . . . extent the same to everyone Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM

not translate directly to the success of larger groups. As Henrich explains, “the ca-“the Henrich explains, As groups. of larger success the to directly not translate as the group geometrically decreases maintainpacity for cooperation to reciprocity size increases.” eration is sustained not by individual enforcement but by community enforcement, enforcement, by community but enforcement individual not by eration is sustained scale. large a on cooperation for allow would that strategy behavioral a as evolved now know about the increase of early human social groups, direct reciprocity can can reciprocity direct groups, social human early of increase the about now know Instead, model. main the as accepted be no longer mary factor in maintaining cooperation in large groups.” large in cooperation maintaining in factor mary niches’ with partners who are most willing and best able to foster their fitness. As a result, members members As a result, fitness. willing and best their foster who able to are most niches’ with partners of groups tend to form mutually-beneficial relationships or friendships with thosewho possess matching or complementary abilities and resources.”). groups, and a powerful hunger for social belonging”). In Hoffman’s view, this deep need for for need deep this view, Hoffman’s In belonging”). social for hunger powerful a and groups, belonging creates a “deeply embedded tension between cooperation and cheating, between between cheating, and cooperation between tension embedded a “deeply creates belonging community and individuality, between selflessness selfishness,” and and leads to the problem of punish. to how and whether 42938-lcb_24-4 Sheet No. 119 Side B 02/02/2021 10:18:46 B 02/02/2021 119 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 120 Side A 02/02/2021 10:18:46

Id. see see that is —

128 note 10,16 at supra , According to Har- According to 129 Social Influence on Third- on Influence Social holars argue that there is no argue holars OFFMAN H see also see . 204, 205 (2017). (2017). 205 . 204, process was immediate and intimate. Sur- intimate. and immediate was process SYCHOL P

. 131 CON E

note 18, at 134; olved to send signals that induce recipients to behave in ways note 10, 150–73 third-party (discussing at note punishment); supra , 62 J. , supra , note 106, at 254 (“Viewed biologically, moral judgments are a form of of form a are judgments moral biologically, (“Viewed 254 at 106, note note 104, at 60. 60. at 104, note ENRICH ’ interests or that manipulate them.”). Some sc them.”). Some that manipulate ’ interests or H OFFMAN

H supra & supra supra See at 254–58.Third punishment party plays role key a in establishing and enforcing

Krebs, Krebs, ENRICH ENRICH 130 H Petersen, See id. See at 16 (pointingat out that human brains in the animal are and the most complex kingdom By spreading group-beneficial cooperative norms involving the punishment have altered may selection group cultural violators, norm non-cooperative of anthropologistsAccording psychologists, evolutionary and to adaptive goals As an intensely social species, humans were so reliant upon cooperation that that cooperation upon reliant so were humans species, social intensely an As In order to function together and to survive and thrive, a mechanism was was a mechanism thrive, and survive to and function together to In order the selective environment faced by genes. This altered environment may have may environment altered faced This genes. environment by selective the and cooperative acquire to promote a readiness things like genes that favored punishing norms, a default bias toward helping (to avoid being punished), a facul- social other and numerous punishment, to respond preparedness to ties. 130 131 128 129 M K communication. . ev . . [A]nimals are vard biologist Joseph Henrich, Henrich, Joseph biologist vard the instinct to enforce cooperation and to punish non-cooperation is a central theme is theme a non-cooperation punish central and to the instinct enforce cooperation to fab- evolutionary in the enmeshed norms became Cooperative evolution. of human success story. our to are central and adaptation ric of human

social norms in large organizations, and third-party punishment is a fundamental ingredient of social cohesion. vival depended on individuals understanding and accepting consequences to violat- to consequences accepting and understanding individuals on depended vival a non- reprimand physically to impulse instinctive automatic, A rough, norms. ing necessary. was it appropriate, only not therefore was other cooperative also id. species”—these. humans are facts “more intensely social than. any genetically heterogeneous . 2020] RETRIBUTION RETRIBUTION 2020] 1365 punishment system—the justice criminal Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM have been to “(1) meet requests from reciprocators, (2) deny help to cheaters, and and cheaters, to help deny (2) reciprocators, from requests meet “(1) to been have (pointing out that humans are intensely social beings because being intensely social gave humans “significant survival advantages in areas such as mutual defense and hunting,” which were crucial primates predecessor our where jungles African Southern rich and wet, warm, the in survival to lived). needed to keep a check on all members of the group, and punish anyone who was was who anyone punish and the group, of members all on a check keep to needed at 258. 258. at necessary inconsistency betweenbehaving morally and fostering one’s biological interests children; people instead, some one’s protect to or survive immoral attempt to say, it’s not to to children. their of the lives and lives their to preserve obligation moral a have parents that argue that foster the senders that foster (3) potentially to educate cheaters in order to widen and strengthen the social ex- social the and strengthen widen to in order cheaters educate to (3) potentially forchange insurance.” mutual system Party Punishment: An Experiment An Punishment: Party are not unrelated, Hoffman argues, since humans need “massively networked brains just to be able Fabbri Marco & Emanuela Carbonara, each other”); keep track of to C Y 42938-lcb_24-4 Sheet No. 120 Side A 02/02/2021 10:18:46 A 02/02/2021 120 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 120 Side B 02/02/2021 10:18:46

. M K TS , 8 EV I In In C Y R note supra

. 132 , OTIVE IN OTIVE CON supra M E EIDER

. ANDBOOK OF H UR H USTICE J Altruistic Punishment Punishment Altruistic in Scholars Victoria Scholars Victoria , 46 , 46 E , OOPERATION AND These gut emotive emotive gut These C HE 136 133 T in See generally , in in Retributive Justice and Social Johnson & Bering, , 73, 84–85 (Mark D. White ed., ed., D. White (Mark 73, 84–85 see also OLICY P in situations in which individuals individuals in which in situations Social Norms and Human Cooperation suggest that religion has nothing to do with thatbeliefs “moral are a source of cooperative that religion is a key promoter of within-group Angry blame is thus a product of evolu- of a product thus is Angry blame 135 Ernst Fehr & Simon Gächter, HEORY ANDHEORY

T Forgiveness and Relational Repair are unlikely be effective. to because It is of this that . . . the 77 (2001). (2001). 77 Psychological Foundations of Incentives

73,

SSAYS ON ON SSAYS . E

EV : R Evolution, Motivation, and Moral Beliefs In Search of Homo Economicus: Behavioral Experiments in 15 Small- in Experiments Behavioral Economicus: Homo of In Search

. RetributiveJustice: Its SocialContext 137, 137–39 (2002); Gerald Gaus, Gaus, Gerald (2002); 137–39 137, . 185, 188 (2004); 188 . 185, 93 (Everett L. Worthington, Jr. ed., 2005) (providing physiological2005) (providing Jr. ed., Worthington, L. 93 (Everett

– CI CON S E Id.

. ATURE The feeling of outrage had to be strong and automatic to function function to automatic and be strong had to outrage of The feeling M 134 ETRIBUTIVISM 291, 293 (Michael Ross & Dale T. Miller eds., 2002). 2002). eds., Miller T. Dale & Ross (Michael 293 291, R 185, 189– 185, 91 A note 132,527 at (noting that the view

, Neil Vidmar, in OGNITIVE IFE IFE 525, 527 (Kim Sterelny et al. eds., 2013) (“[T]hose in our lineage who had moral moral had who lineage our in (“[T]hose 2013) eds., al. et Sterelny (Kim 525, 527 Caryl E. Rusbult et al., al., et E. Rusbult Caryl Ernst FehrArmin Falk, & Matteo Mameli, , , 415 N L C

supra See See For a discussion on how these emotions are often viewed today as “moral beliefs,” see See See Joseph Henrich et al., Henrich Joseph

135 136 133 134 132 VERYDAY VOLUTION ORGIVENESS Scale Societies motivations that can work in cases where (i) cooperating is extremely important for genetic fitness genetic for important is extremely motivations work that can in cases where (i) cooperating and (ii) the other sources of motivation reliablyacross ofof range situations. Scholars havea suggested just deserts that associated is which outrage, of emotion occurs—the punishment that assures model even punishment, compels retributivism, with punish. to not motives have competing against). 2011); note 2. in Humans Cooperation cooperation” in ancient or modern societies, and 105, at 221105, (arguing that “[i]t would at be incredible to beliefs in favor of (certain kinds of) cooperative behaviors had higher fitness (on average). Thinking of cooperationterms in moral generates robust and reliable motivation a to cooperate. Believing that cooperation is morallyrequired—demanded in an inescapable and automatically authoritative way—makes one more likely to cooperate.”); tion that helps maintain social order by encouraging individuals to administer to sanc- individuals encouraging by order social maintain tion helps that atwhen to do tions, even a comes so to the punisher. cost

Mameli, F Fischbacher, Urs & Fehr Ernst (2002); 706 687, TRENDS E E 1366 1366 as a whole. group the of interests the contravene would that a way in behaving REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM reactions served the dual goal of discouraging humans from harming each other other each harming from humans discouraging of goal dual the served reactions while simultaneously encouraging individuals,and by extension society, punish to those who did. McGeer and Friederike Funk noted: noted: Funk Friederike and McGeer evidence in support of the idea that retaliation is an instinctual response to being transgressed response to these pressures, early hominids developed emotive reactions that func- that reactions emotive developed hominids early pressures, these to response norms. of cooperative a set with compliance prompt to tioned cooperation during human evolution). Further, Johnson and Bering argue that “the expectation and fear of supernatural punishment . . . to promoteserves cooperation” and that this mechanism ability to form moral beliefs was genetically selected for”). for”). selected wasability moral beliefs genetically form to evolved via individual selection and that any group selection effects, though not necessary, would system. the help drive 42938-lcb_24-4 Sheet No. 120 Side B 02/02/2021 10:18:46 B 02/02/2021 120 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 121 Side A 02/02/2021 10:18:46

139 . at 34 IOLOGY IOLOGY id Hence, Hence, . 523, 534– . 523, 141 HIL ”, 25 B P

punish”). Every &

When viewed as as viewed When L.

TheRole of Compassion . 142 note 10, at 33 (noting (noting 33 at 10, note RIM Moral Signals Moral supra “ , , 11 C , 11 In order In for system this to (“[P]unishment itselfbeen had 140 Id. Signals provided a way for the the for way a provided Signals OFFMAN 138 H Helen Weng Y. al., et note 10, at 17 (noting that the development development that the (noting 17 at 10, note This is because it is evolutionarily significant Are ‘Optimistic’ Theories of Criminal Justice Justice Criminal of Theories Are ‘Optimistic’ so memorialized a compact to see also see supra see also , See id. See , PLOS ONE, Dec. 10, 2015, at 2 (“Societal benefits benefits (“Societal 2 at 2015, 10, Dec. ONE, , PLOS

137 note 18, at 58. 58. at 18, note OFFMAN Behavior

H supra r cooperating and cheating, over right and wrong). Hoffman also , see also see Probative Case of Civic Republicanism

Indirect Reciprocity and the Evolution of note 138, at 35–36; at 138, note note 138, at 33–36; 33–36; at 138, note ENRICH at 22 (“Punishment deterred enough cheating so that living in groups was note 138, at 36. 36. at 138, note H

supra id. supra

& supra see also This meant that except for crimes of treason and regicide, most ancient and medieval most and regicide, treason crimes of for meant that except This Smead, Smead, Rory Smead, Smead, Rory Smead, See id. id. See ENRICH ENRICH See See Smead, H See Victoria McGeer & Friederike Funk, . Id. . Id. . 33, 35–36 (2010); (2010); 35–36 33, . [O]ur human taste for punishment . . . is undoubtedly honed and shaped by by shaped and honed undoubtedly is . . . punishment for taste human [O]ur In a system of indirect reciprocity, the population behaved according to an an to according behaved population the reciprocity, indirect of a system In cultural norms,number a of theorists suggest that natural selection may have by lineage human our in cooperation social large scale of the problem solved endowing us with a “punishment mechanism”—a hardwired piece of cogni- norms social of the transgression to sensitivity our ensures that machinery tive reaction. a punitive triggers and 142 138 139 140 141 137 HIL P M K

to punish. in Altruistic Helping and Punishment and Helping in Altruistic may also occur . . . where personal resources are used to negatively impact those who have have who those impact negatively to used are resources personal where . . . occur also may (asserting that law is one of the few remaining modern reminders of our deeply embedded embedded deeply our of reminders modern few remaining the of one is law that (asserting “evolutionary schizophrenia” ove that underpoints English common law, out that were considered acts inherent wrongs—as opposed to wrongs that were merely prohibited wrongs—were dealt with byway of private revenge the punishment left instead, and homicide, like those even crimes, in involved get not did states tribe. or clan, and their family, the victims to that the rule of law serves as a way for humans to bring together cooperation and punishment as groups get bigger. “Laws automatically the redefined expanding social whole, and entitled,least at in theory, all members of the new groupings to the protections of the old ones.”); function reliably, however, violators had to be consistently sanctioned. consistently be to violators had however, reliably, function population to distinguish the defectors from the cooperators using reputation. using cooperators the from defectors the distinguish to population punishment servedan important communicationfunction as between group mem- violator. individual the and group the between as well as bers, B. Moral Outrage as Communication Signal Signal Communication as Outrage B. Moral individuals with other only each interact Under aindirect reciprocity, of system the of behavior past the about information “receiv[ing] by benefit but occasionally interact.” to about are they whom with individual

member in a group became able to enforce the rules. rules. the enforce to became able in a group member possible. Having brains that punished allowed us to have brains that cooperated.”). & of language contributed to humans’ ability to communicate rulesfor behavior, and “not only memorialized a compact for behavior, they al socialized.”); Psychologically Feasible? The 2020] RETRIBUTION RETRIBUTION 2020] 1367 Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM 35 (2017). 35 (2017). increasingly complex network of norms. social network increasingly complex C Y 42938-lcb_24-4 Sheet No. 121 Side A 02/02/2021 10:18:46 A 02/02/2021 121 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 121 Side B 02/02/2021 10:18:46 M K C Y TRATEGIC S , punishing to HE cial behavior by T note 105, at 222 222 105, at note e.g.

: note 10, at 29–30 supra EASON note 10,16 (humans’ at

to cheat—so that we can we can to cheat—so that supra R , 144 itical role in shaping human supra , note 8, at 57 (pointing out that 57 (pointing out that note 8, at ITHIN Additional psychological ca- psychological Additional W OFFMAN 146 H supra supra OFFMAN Johnson & Bering, see H ASSIONS see acting. Hence, our blaming sensitivity to P see

to promote and maintain proso , tecting opportunities note 14, at 151 (noting that Charles Darwin Darwin Charles that (noting 151 at 14, note Economists Bowles and Gintis have argued argued have Gintis and Bowles Economists RANK F 145

supra H. Jordan & Rand, note 115, at 5; 5; 115, at note idence to suggest threat that “the of supernatural punishment see Further, “[p]unishment reduces the gain to free-rid- Further, reduces “[p]unishment note 115, at 5; note 115, at 5. 5. at 115, note note 115, at 197; 197; at 115, note note 137, at 535 (“In Frank’s terms, emotions like angry blame blame angry like emotions terms, Frank’s 535 (“In at 137, note 147 Krebs, OBERT supra supra what scholars call “altruistic punishment”; also, “[s]ocial norms aim supra supra supra supra supra supra , , , , — supra t]hus, moralistic punishmentt]hus, plays a cr (1988))); (1988))); see also see INTIS INTIS INTIS INTIS . . [ G G G G

& & & & MOTIONS be punished, and so our blaming anger comes to serve as a powerful deterrent to E will OWLES OWLES OWLES OWLES B B B B McGeer & Funk, As humans evolved, the species’ capacity to build institutions and to use use and to institutions build to capacity species’ the evolved, humans As Humans’ cognitive, linguistic, and physical capacities made them particularly particularly them made capacities physical and linguistic, cognitive, Humans’ 143 145 146 147 144 143 OLE OF THE “recognized that animals may obtain benefits from group living by exchanging goods and services by coordinating and . . defend food, . . obtain to efforts . and . parasites, remove predators, against (arguing that there is ethnographic ev of onlyis fear not behavior; human on a effect” exerts powerful transgressions norm for supernatural cultures, punishment common across but linked taboos it is commonly to concerning life, death, scarce resources, sexual access,food sharing, hunting, divisions of labor, defense, and warfare); decide whether other members will catch us if wedecide whether members steal other food the that group worked so hard to gather, and, if so, whether and how they will punish us,” for example). stabilize cooperative social norms. They also operatedevices,’ making credible as ‘commitment to others the overwhelming likelihood of our so transgression acquires, in addition, an important signalling function: we signal to others that bad behaviour such behaviour.” (discussing R . deterring selfishness have “sophisticated and sensitive systems for de “research demonstrates that punishment can serve “research demonstrates that punishment can do not simplydo prime us to act in rational our broader ways interests— that serve pacities include the ability to internalize norms, to experience social emotions like like emotions social experience to norms, internalize to ability the include pacities characteristics non-kin on membership group base to and outrage, moral and shame language. and ethnicity like duct, to erect social institutions regulating this conduct, [and] to communicate these these communicate to [and] regulating this conduct, institutions social duct, to erect

“powerful social brains, built for cooperation,” are also good at cheating, meaning that humans R transgressed against others” to foster social peace, stabilize cooperation and enhance prosperity.”). 1368 1368 reactionsviolations to emotional norms, and enforce communicate to motivation transgres- a third-party following act, to a commitment of signals themselves were sion. REVIEW LAW & CLARK LEWIS groups. at cooperative forming good 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM cultural transmission of learned behavior grew, allowing early humans to transmit to transmit humans early allowing grew, behavior learned of transmission cultural costs borne the reduced that environments social distinctive create information to byaltruistic cooperators and raised the costs of free riding. that “[t]hese capacities allow [humans] to formulate general norms of social con- social of norms general formulate to [humans] allow capacities “[t]hese that situations.” particular in entail they what and rules morality and supporting prosocial behavior”). (“[S]ocially cooperative behaviors”(“[S]ocially cooperative evolved in our species.). build shelters”). shelters”). build 42938-lcb_24-4 Sheet No. 121 Side B 02/02/2021 10:18:46 B 02/02/2021 121 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 122 Side A 02/02/2021 10:18:46

149 note 18, 69; at supra altruism is motivated , ENRICH H

& Evolutionary Foundations of Human and also believes that Tim has has Tim that believes also and ENRICH partners. In humans, partners. In humans, m ic social preferences supporting coop- supporting preferences ic social H U.S. 10,910, 10,910 (Supp. 2, 2011) (noting (noting 2011) 2, (Supp. 10,910 10,910, U.S. d provokes in its members both moral- both members in its provokes d

. cf. CI The violation of these forces represents an an represents forces these of The violation 148 S

. 150 CAD A L ’ AT note 115, at 4; 4; at 115, note N

. supra supra , ROC note 2, at 219. 219. 2, at note about a practical demand demand a practical about INTIS M supra , note 148, at 10,910. 10,910. at 148, note G

, 108 P , 108 & —then Charles will feel moral disapproval toward Tim and may be and may Tim toward disapproval moral feel will Charles —then at 148; at Joan B. Silk & Bailey R. House, m supra EIDER H OWLES See id. See B See a moral belief belief a moral violated is Punishment Tim. and punish disapproval moral express this to motivated of course unpleasant, andso is being morally disapproved of, which can be seen as a particular kind of punishment. Insofar as Tim is motivated to avoid will Tim disapproval, moral Charles’s avoid to Charles and by punished being be- moral Charles’s with accordance behave in to be motivated also Whenlief... . Tim considers acting in a way that goes against a moral belief that Tim knows Charles to have, Tim will experience a negative emotion at the thought that Charles will feel moral disapproval toward him. The poten- thereby will Tim and marked, emotionally negatively become will action tial be motivated not to perform the action. So, for example, if Charlesbelieves Heider’s “ought force” derives from the individual’s commitment to the values the values to commitment individual’s the from derives force” “ought Heider’s If Charles believes that Tim has violated a moral norm—that is, Charles has Charles has is, norm—that a moral has violated Tim that believes Charles If According to Bowles and Gintis, altruist Gintis, and Bowles to According 148 149 150 M K that induce cooperation, so that contributing to common projects and punishing punishing and projects common to contributing that so cooperation, induce that competi- “between-group (3) and right”; own their in objectives became defectors Silk & House, “human groups have devised ways to protect their altruistic members from exploi- from members altruistic their protect to ways devised have groups “human such asandvia shunning, ostracism, even behaviors the self-interested” by tation prolonged adopted “humans (2) norms; cooperative violate who of those execution norms the “internalize to individuals to cause socialization” of systems elaborate and tion for resources and . . . remains survival a decisive force in human evolutionary chal- tend[] to survive members with many cooperative “[g]roups dynamics,” so that of that individual’s moral community. moral individual’s of that and [that] cooperation extends beyond the . . . that “humans are remarkably altruistic primates. Prosocial Sentiments 2020] RETRIBUTION RETRIBUTION 2020] 1369 self-inter- entirely are who even those induce may and a group, in individuals ing” Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM insult to the integrity of the community an community of the integrity to the insult the experience of automaticity The the offender. punish urge to the anger and istic way: this explained been has punish to desire and the outrage of eration outcompeted unmitigated and amoral self-interest for three key reasons: (1) (1) reasons: key three for self-interest amoral and unmitigated outcompeted eration groups.” less cooperative the of territory upon the encroach and to lenges ested to cooperate—thus, “groups with more punishers can sustain more coopera- sustain more punishers can more with “groups cooperate—thus, to ested successful. more be and ultimately tion” at least in part by empathy and concern for the welfare of others”). others”). of welfare the for at least and concern in part by empathy bounds of close kinship and networks of reciprocating close of networks kinship and reciprocating bounds of C Y 42938-lcb_24-4 Sheet No. 122 Side A 02/02/2021 10:18:46 A 02/02/2021 122 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 122 Side B 02/02/2021 10:18:46

, M K 152 154 C Y As a As 156

151 157 ibutive motivationsibutive might reliably One way to think about the retribu- about the to think One way under which they live are respected.” are live which they under 155 The Psychology of Compensatory and Retributive ponse—the inflexibility of the retributivist retributivist the of inflexibility ponse—the . 324, 326, 332–33 (2003). (2003). 332–33 326, . 324, ment, or the culpability of the wrongdoer. of or the culpability ment, EV R

. 333, 334 (Kim Sterelny et al. eds., 2013). eds., al. et Sterelny (Kim 334 333, The moral outrage impulse evolved in response to to in response evolved impulse outrage The moral SYCHOL 153 P

. VOLUTION OC E iality in future interactions.”). note (“Of 153,347 course, at retr S

The Role of Learning in Punishment, Prosociality, and Human Uniqueness Human and Prosociality, Punishment, in Learning of The Role TS TS & I note 132, at 531. note 20, at 535. 535. at 20, note supra supra supra supra supra at 348. 348. at

ERSONALITY ERSONALITY Miller, Miller, Fiery Cushman, John M. Darley & Thane S. Pittman, Cushman, Id. Id. Mameli, , 7 P Additional support for the notion that retributive impulses evolved in order to to in order evolved impulses retributive that the notion for support Additional that keeping promises is morally required,and Tim knows this, Tim’s fear of Charles’s moral disapproval will motivateTim to keep promises. not disinter- are reactions justice disinterested perspective, from this “Viewed 152 153 154 155 156 157 151 OOPERATION AND AND OOPERATION C thefor need retribution-based punishment,clearest based upon basic and the most punish the of deservingness the marker: A relatively cohesive social response keptwould-be violators in check.As one an- punish- this of between relationship dynamics evolutionary “the notes, thropologist specialized a via operate will punishment that likely it make prosociality and ment behavioral . .” . . adaptation res the behavioral of The characteristics impulse that has evolved in humans—therefore ironically had a utilitarian function function utilitarian a had ironically in humans—therefore evolved has that impulse humankind. of history evolutionary the in in Justice produce deterrent or incapacitative effects. In fact, I have taken pains to argue that the best way way best that the argue I have taken pains to fact, incapacitative In deterrent or effects. produce understand the functional valueto is precisely deterrence—that is, terms of punishment of in eliciting contingent prosoc C. Retribution Social Differentiation and C. of punitiveness relative the of studies from derives in check members group keep 1370 1370 REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM ested at all,” because every member of the community “has a stake in seeing that the the that seeing in stake a “has community the of member every because all,” at ested structure the authority of values and rules case-by- complex and nuanced a more for proxy a as it serves that is impulse tivist to serve a utilitarian to transgressions response appropriate of the determination case taste innate an “Having analogy: this proposed psychologist evolutionary One need. associationbrute the problem learningby of which for fat or circumvents sugar states. future energetic with which are correlated foodstuffs potential of properties of problem the circumvent would punishment for taste innate an having Similarly, social partners.” from future prosociality associatively how to elicit learning result of evolving at a time when brute, reflexive responses were critical to survival, survival, to critical were responses reflexive brute, when time a at evolving of result operates and reason, defies it that inflexible, and fixed so become has impulse the response. different a for call would the circumstances even when 42938-lcb_24-4 Sheet No. 122 Side B 02/02/2021 10:18:46 B 02/02/2021 122 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 123 Side A 02/02/2021 10:18:46 . partic- SYCHOL Cognitive P

. The more more The OC S 160

UR 162 Vidmar has described described has Vidmar

(2013) (“[E]volutionarily-

, 37 E 158 35

. CI S te that individuals belong of to a variety race or sexuality, triggering in-group/out- Michael E. McCullough et al., RAIN From an evolutionary standpoint, co- standpoint, From anevolutionary B RetributiveJustice and Social Categorizations:

ul individuals within their own social social own their within ul individuals & 161

. whom one shared a group would be be would a group one whom shared note 10, at 32 (noting that scholars have found that found have scholars that 32 (noting 10, at note EHAV See generally See supra , s, 36 B s, OFFMAN He describes an incident in Newfoundland, Canada, where where Canada, Newfoundland, in incident an describes He H 159 note 134, at 294–300. see also supra supra at 295–96. 295–96. at the deviant acts is far worse when the community 300 social harm to (“In short, at Vidmar, Vidmar, Id. Id. Jan-Willem Lam, & Jerôme van Prooijen An in-group member is someone who is part of one’s own group. An out-group member important. In-group members are far more likely to be dependent upon one one upon be dependent to likely more far are members In-group important. 159 160 161 162 158 M K different groups. A law professor is a member of the legal academy and shares membership with with membership shares and academy the legal member of is a professor A law groups. different her colleagues at her own institution and others. She may also be a member of a neighborhood organization, professional groups, a book club,church or synagogue, co-op, and a family. and when her gender, her country, community, the broader in membership she shares Moreover, relevant, her role as a parent, adult child, sibling. Any significant aspect of an individual’s identity can be grounds for in-group affiliation. is a member of a different group. It is important to no group. a different of is a member ularly ularly en- in interest acute particularly a have would community the Moreover, another. powerf from behavior prosocial couraging group.individuals High-status likely would have greateraccess to resources, and bad behaviorindividualsof the part high-status on mostbe likely would to in result disaster for the One group. study found that the status of a transgressor was a factor transgressor. that toward was member in-group an punitive how in determining When the transgressor high in was status—signalingandpower more responsibility in the group—participants were more punitive than they were toward an out-group was therefore status—and transgressor low less transgressor. But when the in-group punish to desire a express not did survival—respondents group’s the to important transgressor. the out-group than transgressor more the in-group operation among those individuals with individuals those among operation Catholics and Protestants are both salient religious groups. Several years ago, it was was it years ago, Several groups. religious both salient are Protestants and Catholics young abused sexually had order religious Catholic a of members that discovered expressed Catholics abuse, the of discovery Following care. their in were who boys Protestants. did than punishment severefor desire stronger a much relevant characteristics of the defendants (such as their sex and attractiveness), and shared (such as their sex defendants relevant of the characteristics characteristics between defendants(suchand jurors as group prejudice), influence punitive sentiment and leniency or harshness in sentencing.”). intense reaction of Catholics illustrates the fact that moral outrage is stronger when when stronger is outrage moral that fact the illustrates Catholics of reaction intense offender. the with affiliation an one shares The Perceived Fairness of Punishment DependsIntergroup on Status

Systems for Revenge and Forgivenes Revenge for Systems are committed by those who are in-group members than when they are committed by outsiders. outsiders. by committed are they when members than are in-group who those by are committed The acts are viewed not only as a violation of rules, but also as an explicit rejection of the norms them.”). to adhere to membership by group required is who by one values and 2020] RETRIBUTION RETRIBUTION 2020] 1371 a of members out-group in-groupmembers. and to group Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM a variety of incidents in which people responded more punitively to in-group than than in-group to punitively more responded people which in incidents of a variety offenders. out-group 1244, 1246 (2007); (2007); 1246 1244, C Y 42938-lcb_24-4 Sheet No. 123 Side A 02/02/2021 10:18:46 A 02/02/2021 123 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 123 Side B 02/02/2021 10:18:46

M K 168 C Y 102 ECISION ECISION D

UROPE AND UROPE OCIETY & S E

163

Id. ABOR IN Importantly, in the the in Importantly, L UDGMENT EASANT IN IN EASANT P 167 , 4 J OLISH P IVISION OF OF IVISION HE D Vidmar writes: writes: Vidmar T

, 164 HE T still living in relatively small nomadic tribes

, Assessing Pretrial Publicity Effects: Integrating Moral Emotions as Determinants of Third-Party Third-Party of Determinants as Emotions Moral Other examples of the notion that moral moral that notion the of Other examples

166 . 317, 323, 330–31, 333 (2000). (2000). 333 330–31, 323, . 317, NANIECKI Z 165 members of other Oklahoma communities, Oklahoma other of members URKHEIM EHAV D B

. LORIAN F MILE UM

E H

& &

HOMAS HOMAS , 24 L. note 134, at 293. 293. at 134, note T

I. (1958). (1958).

supra , Christina A.Studebaker et al., ILLIAM at 323, 331. 331. 323, at at 293–94 (quoting W

1250–55 Rob M.A. Nelissen & Marcel Zeelenberg, Zeelenberg, Marcel & Nelissen M.A. Rob (2009). 544 543, Vidmar, Id. 2 e.g. See, Id. In the case of punishment of third-party violators, researchers have proposed proposed have researchers third-partyviolators, of punishment of In the case Vidmar asserts that retributive reactions reinforce group cohesion and solidify solidify and cohesion group reactions reinforce assertsVidmar that retributive Similarly, anthropologists Thomas and Znaniecki concluded that in Polish in Polish that concluded Znaniecki and Thomas anthropologists Similarly, We have only to notice what happens, particularly in a small town, when when town, a small in particularly what happens, notice to We have only some moral scandal has just been committed. [Community members] stop to seem together come to they visit each other, they street, the on each other talk of the event and to wax indignant in common. From all the similar im- expressed, there gets that temper the all for exchanged, are [which] pressions temper. [public] a unique emerges 163 164 165 166 167 168 AKING MERICA MERICA that the feelingofanger retribution induces regardlesspunisher,of cost the the to mem- all group against transgressions future deter to serves punishment the because herself. or him- punisher the and punisher of the kinbers, including suggesting that violations within one’s special ownattention and garner community Punishment: Anger, Guilt, and the Functions of Altruistic Sanctions Altruistic of Functions the and Guilt, Anger, Punishment: and regularly clashing with other tribes,15 percent of died [humans] violent deaths;” however, humans. among rate” death violent 3 percent “a was there agriculture, after M ed. 1960)). Press Free trans., Simpson (George A Content Analytic Results human-on-human violence has been in steady declinehuman groups as have becomelarger and correspondingly smaller). outsiders the number to of Hoffman, archeologists According forensic estimate that “before agriculture, when [humans] were 1372 1372 Maintenance Group and Punishment D. Altruistic REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM

offenses garner public outrage and cohesion around a shared desire for revenge in- revenge for desire a shared around and cohesion outrage public garner offenses the and City Oklahoma in Building Federal Murrah the of bombing 1995 the clude 9/11 attacks on Center in New Yorkthe Trade World City. support for the legitimacy of group norms among not only the offenders, but also also but offenders, the only not among norms group of legitimacy the for support group. the social of members the non-offending peasant communities, punishment served the important purpose of obtaining con- obtaining purpose of important served the punishment peasant communities, violated. were that the rules sensus about case of the Oklahoma City bombing, citizens of that city demonstrated stronger stronger demonstrated city citizens of that City bombing, caseOklahoma the of did than for justice calls and reactions 42938-lcb_24-4 Sheet No. 123 Side B 02/02/2021 10:18:46 B 02/02/2021 123 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 124 Side A 02/02/2021 10:18:46

Re- supra The The

at 127. 172 170 169 Id. 803, 803 (2006). (2006). 803 803, intentional harm elicit more activity activity more elicit harm intentional United States v. McVeigh, 923 F. Supp. 1310 1310 Supp. F. 923 McVeigh, v. States United administers the punishment or apunishment or third- administers the see see EUROSCIENCE N at 298 n.3; Id. Consequences, Action, and Intention as Factors in Moral Judgments: Judgments: in Moral Factors as Intention and Action, Consequences,

OGNITIVE note 10,126–28 at (noting that retaliation and revenge are common C Id.

supra at 128.social at species, In the most common kind of retaliation a simple is , note 17, at 14. 14. at 17, note , 18 J. , 18 Imaging work has shown that “administering punishment to a to punishment “administering that shown has work Imaging Id. 171 supra OFFMAN H See See Jana Schaich Borg et al., Darley, “Judge Matsch of the U.S. District Court concluded Matsch the U.S. District of Court “Judge that ‘the entire state had become a IV. SCIENTIFIC EVIDENCE OF RETRIBUTION EVOLUTION EVOLUTION RETRIBUTION OF EVIDENCE SCIENTIFIC IV. A number of areas of inquiry dovetail nicely with the evolutionary psychology psychology evolutionary the with nicely dovetail inquiry of areas of A number Brain imaging reinforces the primitive nature of the retribution instinct. retribution the of nature primitive the reinforces imaging Brain 170 171 172 169 M K in areas associated with emotion (orbitofrontal cortex and temporal pole) and less less and pole) temporal and cortex (orbitofrontal emotion with associated areas in superior and angular gyrus the (including cognition with areas associated in activity gyrus).” frontal unintentional harm, moral scenarios involving involving scenarios moral harm, unintentional transgressor” is a pleasurable act that “activates reward centers in the brain.” the in centers reward “activates that act pleasurable a is transgressor” human behaviors that have cellular roots that go back to the first life forms). The immunological the first life forms). back to go that cellular that have behaviors roots human response of retaliation and revenge is the most widespread all of of systems retaliation. There is an important difference in humans between revenge and retaliation: revenge may connote connote may revenge retaliation: and revenge between humans in difference important an is There a more sophisticated, cognitive, kind of planning, while retaliation might signal a more automatic, emotional, reaction. (altruistic reciprocate punishment)—meaning,refusal to “[i]f you cooperate with me, I don’t with you.” cooperate won’t

brain reacts differently to situations that have moral implications versus situations situations versus implications moral have that situations to differently reacts brain only involving scenarios to moral “Compared choice. a moral implicate not do that An fMRIInvestigation unified community, sharing the trauma had become emotional who directly those of and personal destruction, death, the from removed further Colorado, Denver, . . . . victimized’ 2020] RETRIBUTION RETRIBUTION 2020] 1373 deviant is It correct. adaptively seems This outrage. moral of degree the highest threat. existential biggest the pose who own community one’s of members Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM search suggests that the positive feeling associatedpunishing with exists regardless transgression of the victim of the whether explanation of retribution. Evidence suggests that cooperative punishmentinstincts cooperative suggests that explanationof Evidence retribution. contemporary or logic by explained not and change, to resistant hardwired, are goals. A. Brain Imaging note 134, at 298. In deciding to move the trial from Oklahoma, the court concluded that that concluded court the Oklahoma, from trial the to move deciding In 298. at 134, note “Oklahomans were ‘united as a family,’ that there was ‘extraordinary provocation of their emotions of anger and vengeance,’ thatwas there ‘a prevailing belief that some action must be (D. Colo. 1996). 1996). (D. Colo. takento make things right again,’ and that thecommon in articulating reference these feelings done.’” is justice that ‘seeing was knowledge of the victims, had the lowest level of reaction of the cities studied.” Vidmar, studied.” the of cities level lowest reaction of had the victims, knowledge the of C Y 42938-lcb_24-4 Sheet No. 124 Side A 02/02/2021 10:18:46 A 02/02/2021 124 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 124 Side B 02/02/2021 10:18:46

M K See 174

C Y Yet IMES Id. T

175 at 5. De 5. De at HEORY OF Id. T , N.Y.

: e from a long lineage OGNITION C AND ,

The experience of feeling outrage outrage feeling of experience The 173 Today, renowned thinkers continue continue thinkers renowned Today, g ability is unique in the animal king- in is animal unique the ability g note 11, at 4 (“[T]here never was a point at o processes, the “seeing-that” (unconscious “seeing-that” o processes, the HINKING 176 T

, supra supra points out that humans “com ATTERNS P Reasons Matter (When Intuitions Don’t Object) de Waal,

, see also note 11, at 13–14 (referencing a long tradition, reaching “back to ARGOLIS M supra supra note 20, at 535. 535. at 20, note Hopt v. Utah, 110 U.S.574, 579 (1884) (“Thegreat end of punishment is Jonathan Haidt, See OWARD supra see also see also H de Waal, at 14. 14. at (1987). (1987). See Id. Miller, Margolis divides decision-making into tw One theory for why human societies have not abandoned retribution as a le- a as retribution abandoned not have societies human why for One theory 176 173 174 175 UDGMENT dom, but we share instinctive automatic reactions with other animal species. animal other with reactions automatic instinctive we share but dom, Waal argues that humans have a social nature and illustrates this by out pointing that “second to can think of.” we punishment extreme most is the confinement solitary penalty, the death species;rather than being considered “the antithesis of rationality, emotions aid human reasoning.”); offences future of prevention but the committed, offense the of atonement expiation or the not opinion) (plurality (1976) 183 153, 428 U.S. Georgia, v. Gregg kind.”); same the of (“‘Retribution is no longer the dominant objective of the criminal law,’ but neither is it a men.”) (citing of dignity the for respect with our inconsistent one nor forbidden objective 248 (1949)). 241, 337 U.S. v. New York, Williams reasoning. Without question, human human reasonin question, Without reasoning. which became we highly social: social descended from the ancestors, and we apes, monkeys have been group-living forever.”). Further, de Waal (Oct. 7, 2012, 5:00PM), https://opinionator.blogs.nytimes.com/2012/10/07/reasons-matter- when-intuitions-dont-object/; of hierarchical animals for which life in groups is not an option but a survival strategy” and that “[h]aving companions offers advantages in locating food and avoiding predators.” also generally also Theis question this whether remains a legitimate for state-sanctioned basis punish- pow- and important an be to continues emotion ancestors, ancient Like our ment. the longer serves it no contexts but in certain experience, human the of part erful to take us prompt still may outrage moral of feeling The served. originally it need host of but the level, individual on the be adaptive and so may action, protective practices mightpunitive counsel overly from stemming consequences unintended punishment. for basis a as retribution using against

J Aristotle and Thomas Aquinas, which firmly anchors moralitynatural in the inclinations” of our 1374 1374 party witness of the transgression administers it. REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM and the instinctive desire for revenge can be understood as a byproduct of a basic aof basic a byproduct as understood be can revenge for desire instinctive and the actionneeda take to individual when transgressor threatens or the community. our post-hoc rationalizations have deep roots in human history. As mentioned history. As mentioned in human roots have rationalizations deep our post-hoc gitimate basis for punishment is because, as a species, we have createdpost-hoc we a jus- species, as isgitimate because, punishment basis for an automati- from come goals retributivist Although pain. imposing for tifications that described not often are they response, emotional and intuitive, triggered, cally effortful in it originates if as is treated deserts just for desire human the Instead, way. pattern matching—intuition, lower animals) and “reasoning-why” the conscious, (effortful, higher animals). above, complex justifications for the appeal of a just-deserts model has existed since since existed has model a just-deserts of the appeal for justifications complex above, philosophers. Greek Ancient the of the time 42938-lcb_24-4 Sheet No. 124 Side B 02/02/2021 10:18:46 B 02/02/2021 124 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 125 Side A 02/02/2021 10:18:46 , Socio- IVIDED BY BY IVIDED note 39, note at D ELECTION IN Supporters Supporters S RE 182 supra A , Mar./Apr. 1976, AND AND , However, Wilson Wilson However, (2000). (2000). AN 183 EOPLE M P CIENCES se and increase.”). , S TIME (Aug. 1, 1977), 1, 1977), (Aug. TIME OOD

Wilson suggested hu- that , YNTHESIS G S 180 HY HY ESCENT OF EW D N W

: HE HE Sociobiology—Another Biological Determinism T T

IND

: , M In this book, he proposed that all animal animal all that proposed he book, this In us everywhere tend to ri tend to us everywhere ARWIN 178 D Moreover, the proposal that humans are guided guided are humans that proposal the Moreover, 177 IGHTEOUS IGHTEOUS 22–23.

OCIOBIOLOGY R S

, HARLES HARLES HE HE in 1975. in C The Fallacy of Biological Determinism

1 , ILSON W

38 (Vintage Books 2013). 2013). Books 38 (Vintage note 178, at AIDT O. see also see H Wilson agreed with Hume, and claimed that moral philosophers philosophers moral that and claimed Hume, with agreed Wilson supra supra 166 (1871) (“[A]lthough a high standard of morality gives but a slight or no or slight a but gives morality of standard high a (“[A]lthough 166 (1871)

, ELIGION EX 182, 184 (1976). (1976). 184 182, 181 The work gained a great deal of attention, both from supporters and and supporters from both attention, of great deal a gained The work R S DWARD at 117; 117; at , R.C. Lewontin, E 179 ILSON ONATHAN See generally Why You Do What You Do W J E.g. Some scholars assert that retributivism is no longer looked down upon as a method of of method a as upon down looked longer no is retributivism that assert scholars Some See Id. CIENCE S IO 180 181 182 183 177 178 179 M K ELATION TO TO ELATION OLITICS AND retribution). by ancient instincts is often met with skepticism,anger. with example,by ancientoftenmet For even and is instincts so- at 6; Sociobiology Study Grp. of Sci. for the People, punishment, but seems to bepunishment, but seems to and ascending has replaced rehabilitation as the conventional justification for the amount of punishment a person should receive.Dolinko, P 26 B R reason for the behavior that does not account for the instinct that actually created created actually that instinct the for account not does that behavior the for reason the behavior. brains.own after justifications were just creating their consulting with by con- predicted be can behavior human of features many that evidence to pointed Critics group. social the success of and cooperation increase behaviors what sidering determinism. biological as saw they what with were unhappy that opining instead determinism, biological for advocated expressly never himself but forces, that neverthe- by evolutionary shaped profoundly was human behavior 2020] RETRIBUTION RETRIBUTION 2020] 1375 model. retributivist the to justify published he when waves significant created Wilson O. Edward ciobiologist New Synthesis The biology: benefit to evolved having as understood be human—should behavior—including the group. character- it that was theory Wilson’s to objection fundamental A detractors. from behav- to explain up made as behavior our own for explanation human of ized some determined. evolutionarily in essence, was, that ior a create then and a result, particular way as a in behave a feeling, mans experience Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM 537–38 (also asserting that America’s unique affection for the death penalty is driven by an . . advantage to each individual. man and his children other overof men the the tribe same http:/www.time.com/time/printout/0,8816,915181,00.html. advancement in the standard of morality . . . will certainly give an immense advantage to one tribe over another. . . . [A] tribe including[A] tribe many members who, from possessing . in a high degree the . . over another. spirit of patriotism, fidelity, obedience, courage, and sympathy,always were ready to give aid to each other and to sacrifice themselves for the good, common would bevictorious over most other the worldhave tribestribes; and this would At all be natural selection. times throughout morality the standard of success, their in element tribes;supplanted other and as morality is one and the number of well-endowedmen will th C Y 42938-lcb_24-4 Sheet No. 125 Side A 02/02/2021 10:18:46 A 02/02/2021 125 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 125 Side B 02/02/2021 10:18:46

M K see see See 188 C Y ; , 65 J. , 65 Id. Haidt 186 that did not first first shment even when shment even when Haidt found that that found Haidt

187 note 11, at 6 (noting thatnote 11, at 184 supra supra versial book, behavioral researchers researchers behavioral book, versial ; thus supporting the theory that emotions emotions that the; thus supporting theory de Waal, putation value of puni note 182,38 at (noting that Wilson “deserves vior derives above all from fast, automated lving people engaging in behaviors that that in behaviors engaging people lving d psychology—concurred with Wilson’s Wilson’s with psychology—concurred d Q. 108, 109–19 (1977). (1977). 109–19 Q. 108, see also supra supra , moral emotions and judgments can “misfire” in contexts ILSON ILSON AIDT H , 1 W , 1 See . 613, 613 (1993). Haidt has discussed Wilson’s work with with work Wilson’s discussed has Haidt (1993). 613 . 613,

Affect, Culture, and Morality, or Is It Wrong to Eat Your Dog? Your Eat to Wrong It Is or Morality, and Culture, Affect, In other words, they had an emotional reaction reaction emotional an had they words, other In Haidt’s work involves something he calls “moral dumb- “moral calls he something involves work Haidt’s Id. note 8, at 84 (concluding that while moral outrage is a private and note185, at 617. Id. 185 SYCHOL P

. supra supra supra supra OC S Haidt concludes that the reasons people gave why for an action was wrong was The New Synthesis

Id. & at 625–26. Even when Haidt removed all signs of a victim, the respondents try to try to the respondents a victim, of signs all removed Haidt when Even 625–26. at at 613. 613. at Id. Psychologist David Barash welcomed Wilson’s theory, and said publicly that psychology Jonathan Haidt et al., Haidt et al., Id. Since the publication of Wilson’s contro of Wilson’s publication Since the 188 184 185 186 187 Jordan & Rand,

ERSONALITY ERSONALITY David P. Barash, Barash, P. David and colleagues found that respondents’ affective reactions to the stories (statements (statements the stories to reactions affective that respondents’ found and colleagues their of moral predictors were better the action) witness them to bother would that it consequences. about harmful claims their were judgments than should take more seriously the roleof evolution and selection in the study of human behavior. P approval in his own publications. psychology”); moral of prophet beto a called psychological research suggests that human beha emotional and only slower processes). judgments from conscious Humans, de Waal secondarily points out, seem about as emotional in their dealing with eachas any other other social animal. Id. 1376 1376 disci- fromof a variety free Supporters choice. have to continue less, human beings an biology, sociology, plines—including evidence. the with quibbled occasionally they if even theory, REVIEW LAW & CLARK LEWIS have found support for his theory. Psychologist Haidt Jonathan and colleagues,for rea- first, and comes emotion-intuition that suggesting data gathered have example, soning comes second. 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM invo stories creates in which he founding,” story, harm. In one or resulting cost there is no but where taboo, are traditionally had it after dog their ate and cooked who family a of story the told he example, for abeen killed by car.participants tomade clear It was the that no harm to any came this behavior. in engage them saw nobody that and members family the of

while affective reactions were good predictors of how an individual would judge an an judge would an individual of how predictors good were reactions affective while said participants consistently Although were not. perceptionsaction, harmfulness of harm. caused not had act the that reported also they “wrong,” were actions the that wrong, were described acts the why participants asked colleagues and Haidt When precluded. expressly had experimenters that the harms up made often participants create victims. create victims. a post hoc rationalization. where they are not adaptive. adaptive. not are they where reputation is not at stake”—meaning that are “adaptive motivators of action” and “moral outrage specifically is a motivator of punishment”). Moral outrage “appears potential to trackthe re genuine response to wrongdoing, the experience of and drive to report moral outrage also tracks punishing from the reputational gains person benefits a also make sense or couldmake sense or not be rationally they created a reason second. explained, then and 42938-lcb_24-4 Sheet No. 125 Side B 02/02/2021 10:18:46 B 02/02/2021 125 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 126 Side A 02/02/2021 10:18:46

. 189 OC S 623, 623,

see also also see & but that but that , RAIN Additivity of 106 B

, intuitive reaction reaction intuitive ERSONALITY P

69 J. 69

In an experimental setting, setting, an experimental In ,

, Sheila T. Murphy et al., et al., Murphy T. Sheila , registration of the registration e.g.

when they had decided to move. Researchers Researchers move. to had decided they when See, Participants will inflict punishment, even even punishment, inflict will Participants 697, 710–12 (2003) (noting that the initial punitive punitive initial the that (noting (2003) 710–12 697, 191 rating the behavior of cheaters anger”). through s “decided” to move before the participants experienced the move experienced the s “decided” to before participants the A Perspective on Judgment and Choice: Mapping Bounded Bounded Mapping Choice: and Judgment on A Perspective Time of Conscious Intention to Act inRelation to Onset of Cerebral SYCHOLOGIST P note 182, at 58–59. 58–59. at 182, note MERICAN supra supra note 104,note at 63–64 (finding, “[i]n sum, these analyses support the motivational , in Part V. Daniel Kahneman, Daniel

AIDT , 58 A infra supra supra . 589, 589 (1995). Other examples of unconscious influences on decision-making are are decision-making on influences unconscious of examples Other (1995). 589 . 589, See H Otherwork on brain imaging has also supported the idea that the instinct, intuition, or 190 More evidence that moral outrage has evolved to assure cooperation comes comes cooperation assure to evolved has outrage moral that More evidence 191 189 190 M K SYCHOL Rationality by factors outside of an individual’s awareness. Exposure and Priming of Effects Combined Affect: Nonconscious 623,625 (1983). Nonconscious priming is anotherhuman example decision-making of affected outputs of the deservingness heuristic being narrowly focused on (1) investing in reciprocators through compassion and (2) recalib Findings from these studies suggest that moral judgment is caused by immediate immediate by caused is judgment moral that suggest studies these from Findings rea- moral facto post ex by effortful, followed is and reactions, emotional intuitive soning. when respondents receive a scenario in which some person commits a moral trans- a moral commits person whichin some a scenario receive when respondents predictor a substantial is which outrage, moral of feeling a experience they gression, emotion comes first, and the awareness and explaining comes second.example, For in one study, researchers imaged participants’ brains to study the timing of brain activity involved with motor when arm their and simply sit in a chair move to to asked participants The researchers movement. participants were signal The asked to like it. felt they discovered that participants’ brain P 2020] RETRIBUTION RETRIBUTION 2020] 1377 par- the harm resulted, no that participants the reminded the experimenters When main- to continued dumbfounded—they morally be to appeared generally ticipants why. for reasons offer to unable were but they wrong, were actions thattain the off pay no conceivable is there even when and do so, to them for costly it is when game The offender. a current from cooperation future eliciting of to them in terms par- and again other each against play never will participants the that so arranged is Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM from research involving cooperative behavior and games. and behavior cooperative involving research from jurors can also be instructed to consider other factors to influence their decision making); decision influence to their factors other consider can also instructed to be jurors Petersen, decisions of jurors are likely reflect to outrage an heuristic, according to his research B. Game Research and Altruistic Punishing Behavior Behavior Punishing Altruistic and Research B. Game discussed of the punishments that will be assigned to is suggestion of be assigned the transgressor. the punishments to One that that will conscious the is outrage moral this “feeling” of to instances of moral wrongdoing. moral to instances of conscious will to move, indicating that there was physiological change prior to conscious will to conscious indicating prior move, was change physiological to that there awareness. Benjamin Libet et al., Activity (Readiness-Potential): TheUnconscious Initiation of a Freely Voluntary Act C Y 42938-lcb_24-4 Sheet No. 126 Side A 02/02/2021 10:18:46 A 02/02/2021 126 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 126 Side B 02/02/2021 10:18:46 M K C Y , 24 , 305 1767, 1767,

195 In another In another CIENCE 198 and thus assure assure thus and , 312 S , 312 Researchersstudying 200 L. 101, 109 (2010). 109 (2010). 101, L.

. ainst third parties, parties, third ainst iment will be kept in a state of ano- of state a in kept be will iment ncreased activity in a brain area that area that in a brain activity ncreased RIM C

Explaining Altruistic Behavior in Humans in Behavior Altruistic Explaining . The Neural Basis of Altruistic Punishment Altruistic of Basis Neural The T S HIO HIO The Neural Basis of Economic Decision-Making in the 8 O

, note 136, at 185–88. Costly Punishment Across Human Societies Human Across Punishment Costly 1755, 1755 (2003) (discussing the same). same). the (discussing (2003) 1755 1755, note 199, at 1755–57. 1755–57. at 199, note Researchers refer to this phenomenon as “altruistic pun- “altruistic as phenomenon to this refer Researchers note 136, at 137. 137. at 136, note Participants in all cultures were increasingly less likely to to likely less increasingly were cultures all in Participants supra . 153, 153–54, 161–62 (2003). (2003). 161–62 153–54, . 153, 192 197 Citizens’ Assignments of Punishments for Moral Transgressions: A Case A Case Transgressions: Moral for Punishments of Assignments Citizens’ When the responder received an offer that allocated 80% to to 80% allocated that offer an received responder the When supra supra supra CIENCE EHAV 199 B

. One team of researchers administered the ultimatum game in in game ultimatum the administered researchers of team One UM 196 , 300 S , 300 They showed that, in an experimental game, participants punish de- punish participants game, in anexperimental that, They showed Alan G. Sanfey et al., et al., G. Sanfey Alan at 139; Gintis et al., Herbert at H

In 2002, Fehr and Gächter published a study on altruistic punishment punishment altruistic a published on In 2002, Fehr andstudy Gächter 194 & Joseph Henrich et al., et al., Henrich Joseph et al., Sanfey 193 at 1769. 1769. at

1254, 1255 (2004) (discussing image while subjects were engaged in an experimental experimental an in engaged were subjects while image (discussing (2004) 1255 1254, John M. Darley, Darley, M. John See Id. et al., Quervain de J.-F. Dominique See Fehr Fischbacher, & Fehr & Gächter, Id. id. See see also see also The typical “ultimatum” game paradigm is simple: one member of a dyad re- a dyad of member one simple: is paradigm game “ultimatum” typical The 196 197 198 199 200 192 193 194 195 VOLUTION CIENCE 1768 (2006). (2006). 1768 the ultimatum game explained that “[t]aken together, our findings suggest a prom- suggest findings our together, “[t]aken that explained game ultimatum the in thalamus, the of contributions possible with nucleus, the caudate of role inent brains were imaged. were brains registers negative emotions was observed,area the degreeactivity of and that pre- in by decider offending the punish to responder the for tendency an increased dicted gains. any of the decider depriving thus offer, rejecting the the decider and 20% or less to the responder, i the responder, to or less and 20% the decider S E Study in the Psychology of Punishment game); Ultimatum Game 1378 1378 the exper in parties all that assured are ticipants REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) nymityfrom other. each 1/18/2021 5:23 PM many different cultures. different many

fectors in a cooperative activity although the punishment was costly for them and and them for costly was punishment the although activity a cooperative in fectors adaptive The function yielded in punishment of benefit. no one-shot personal in- ag perpetrated harms future deter is to teractions ceives some amount of money and is told that she may allocate it however she she however it allocate may she that told is and money of amount some ceives to either may choose in turn, partner, Her partner. her and herself chooses between then is offered, what rejects partner reject it. If the to or is offered, accept what rational a From money. the of any keep to allowed is dyad the of member neither end will since she offered, amount any accept should the partner perspective, choice is not this shows that research However, otherwise. get would she than with more what happens. group cohesion and cooperation beyond one’s own immediate experience. immediate own one’s beyond and cooperation group cohesion ishment.” resources. the of split even an from diminished as it offer the accept study involving the ultimatum game conducted in the United States, responders’ responders’ States, United in the game conducted the ultimatum involving study in humans. 42938-lcb_24-4 Sheet No. 126 Side B 02/02/2021 10:18:46 B 02/02/2021 126 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 127 Side A 02/02/2021 10:18:46

205 In 204 VOLUTION Fairness andFairness , 25 E , 25 arding social the note 17, at 11 (“The (“The 11 at 17, note Taking Punishment into into Punishment Taking supra Darley, Darley, note 17,at 11 (discussing Fehr & Daniel Kahneman et al., et al., Kahneman Daniel . 1 (2015)(finding that following an see also see also The observing participant frequently frequently participant observing The supra supra ck to the transgressors reg see also 202 SYCHOL rm violations in these experimental games to be P

. at 85; an example of “altruistic punishment.” “altruistic of example an in one study, a participant observed another another observed participant a in one study,

Darley, Darley, , but there is an excellent evolutionary reason reason evolutionary excellent an is there , but CON E

Peter Duersch & Julia Müller, Müller, Julia & Duersch Peter Third-Party Punishment and Social Norms Social and Punishment Third-Party . S285, S290–91 (1986) (noting that third-party witnesses witnesses third-party that (noting (1986) . S285, S290–91 today US see also see also B note 202, note , 46 J. , 46

But see But note 199, at 1256; 1256; at 199, note

supra supra

, 59 J. , 59 note 142, at 2. 2. at 142, note 201 supra . 63, 65 (2004); (2004); 65 . 63, to punish. This has been found even where there is no expectation that that expectation no is there where even found been This has punish. to at 3 how punishment (discussing at could be help by to motivated the compassion id. EHAV

pay B

Weng et al., et al., Weng See de Quervain et al., et al., Quervain de Ernst Fehr & Urs Fischbacher, Fischbacher & Fehr . This latest result, demonstrating that a third party is sometimes willing to to willing is sometimes party a third that demonstrating result, latest This Not only will participants forgo gains to punish an uncooperative game-player, game-player, an uncooperative punish to gains forgo participants will only Not The studies on cooperation, defection, and punishment in game experiments experiments game in and punishment defection, The on studies cooperation, UM 204 205 201 202 203 203 H M K

the Assumptions of Economics who saw a split of $18.00 kept by the decider and only $2.00 given to the receiver could punish punish could receiver the to $2.00 given and only the decider by $18.00 kept of who a split saw $1.00—in of cost a paying by $5.00, of fine a with outcome inflicted that unfair the decider who such cases, 74% ofwitnesses third-party chose to do so). Moral outrage causes individuals to punish when there is no plausible utilitarian utilitarian no plausible is there when punish to individuals causes outrage Moral utilitar- no is there which in ones are These scenarios punishment. for the rationale forian punishment the rationale shown been has desire automatic and intuitive A similarly punish. to drive for the expend resources to punish a person, is is a person, to punish resources expend

acceptability ofbehavior.”). their a rewarding activity and are willing to spend resources to do so. No similar brain activity pattern was found when the punishment administered was only symbolic. Rewarding punishment needs inflictto actual pain.”). conclusion here is that humans find punishing no potential victims and also provide valuable feedba unfair decision, experiment subjects amounts bid positive personally the right to for punish the punish personally). to get decider, and are happier if they & Fischbacher’s study). 2020] RETRIBUTION RETRIBUTION 2020] 1379 inten- the punish to desire the of satisfaction with the associated rewards processing trust.” of abuse tional Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM took the opportunity that the game rules afforded him to punish the untrustworthy the untrustworthy punish him to afforded game that rules the took the opportunity defec- the on inflicted was that finea purchase to points participant, his expending tor. they will will they a future encounter will occur, so there is no “teaching” value to the punishment as as punishment the to value “teaching” isno so there occur, will encounter future a So, concerned. is the participant as far could who participant third a toward way untrustworthy an in behave participant actor. the on bad punishment any not inflict these situations, there are no material gains to the punisher and often costs incurred. incurred. costs often and punisher the to gains material no are there situations, these “irrational.” punisher of the actions the make facts These to exist to reward: psychological research supports the idea that when deciding on on deciding that when idea the supports research psychological reward: to to exist Your Own Hands: An Experiment An Hands: Own Your victim, the perpetrator, or both: “By deciding to punish, third parties may help protect future future protect help may punish, third parties to deciding both: “By or victim, the perpetrator, reveal that a drive to punish exists even when the punisher has no relationship with with has no relationship punisher the when even exists punish to drive a that reveal transgressor. the with interact ever will that she expectation no and the victim C Y 42938-lcb_24-4 Sheet No. 127 Side A 02/02/2021 10:18:46 A 02/02/2021 127 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 127 Side B 02/02/2021 10:18:46 M K at at C Y See id. See A behav-

. 1485, 1485 . 1485, 1485 208 ULL B

206 SYCHOL P

. OC S

& ent affects the functional design. If If design. functional the affects ent pt prosocial behavior roughly by operant ERSONALITY ERSONALITY , 30 P , 30 Less Thought, More Punishment: Need for Cognition Predicts Predicts Cognition for Need Punishment: More Less Thought, nt becomes stronger. The strengthening of the punish- the of strengthening stronger. The becomes nt Tetlock and colleagues have found that if people are in- are that people if found have and colleagues Tetlock

note 39, at 539 (noting that retributivists believe that “the crime must must crime “the that believe retributivists that (noting 539 39, at note note 153, note 337. at Importantly, ubiquitous the nature of retributive Phil note 104, at 60–61. 60–61. at 104, note supra 210

supra supra supra 209 at 342 (“To put it another way, punishment is a mechanism that exploits general general exploits mechanism that way, punishment is a another (“To put it 342 at According to evolutionary psychologists, this motivational structure is thispsychologists, structure is motivational to evolutionary According Michael J. Sargent, J. Sargent, Michael id. id.

Dolinko, Dolinko, 207 See See Petersen, See Cushman, As mentioned earlier, retribution elevates punishment to a primary objective. objective. to a primary punishment elevates retribution earlier, As mentioned The built-in response to moral infractions is so powerful that hearing about a a about hearing that powerful so is infractions moral to response built-in The 209 210 206 207 208 learning processes; it gets social partners to ado conditioning. This prediction about up a clear sets the functional design of punishment. Punishment shouldbe designed to match the constraints of general learning processes, obtaining social cost.”). from partners at the minimum response the maximum (2004). (2004). impulses—and impulses—and the consistency and moral outrage react beingswith feel which human goals. meet these to we evolved how and outcome, the desired to uniformly—relates Crime to Responses Punitive for Support be nullified, that the criminal must pay his debt to society (or (or to society pay his debt criminalbe must the nullified, that . . back), . must pay him that society 342, 348. 1380 1380 determine first people or a group, an to individual resources donate whether to partners. cooperation good be would recipients whether the REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM

more compatible with punishment as a specialized behavioral response. behavioral a as specialized punishment with more compatible human beings needed punishment to be uniform, inflexible, and consistent because because and consistent inflexible, be uniform, to punishment needed human beings de- is to punishment approach inflexible an then critical, is modification behavior is so, or nearly is ubiquitous, that response affective automatic built-in, A sirable. out- moral how precisely is control—this behavior necessary the to achieve able best rage functions. ioral response model of punishment and prosociality suggests that this response is is response this that suggests prosociality and punishment of model response ioral supported specific by behavioral adaptationsby general learningpro- (rather than adap- of evolutionary function a is response behavioral this words, cesses). In other how about clues with us provide also can paradigm response behavioral The tation. punishm of retributive profile the psychological C. Retribution a Specialized as C. BehavioralResponse a victim making or deterrence of achieving with a goal punishment to In contrast deserved or as a necessary characterized is punishment retributive secure, feel more response. single norm violation can prime an individual to look for future opportunities to to opportunities future for look to individual an prime can violation norm single in- the unpunished, gone have violations that perceive people When revenge. exact stinct to impose a punishme reciprocity to enforce of needing perspective the from sense makes instinct ment norms. group and that thewrongdoer has in some sense willedhis own punishment”). 42938-lcb_24-4 Sheet No. 127 Side B 02/02/2021 10:18:46 B 02/02/2021 127 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 128 Side A 02/02/2021 10:18:46

. : OC In- S

211

EVENGE . Julie H. H. Julie R 218 URO see also EYOND EYOND , 29 E , B

212 ULLOUGH C C . 451, 454 (2002); (2002); 454 . 451, Some researchers argue that a a that argue researchers Some . 544, 544 (2013). (2013). 544 . 544, M

EV 217 E. R The authors also focus on the im- Retribution and Forgiveness: The Healing The Healing Forgiveness: and Retribution

. 216 SYCHOL P

. (2008)). (2008)). ICHAEL ICHAEL We’re All Victims Here:Toward a Psychology of Importantly, research has found this con- this found has research Importantly, SYCHOL OC S 213

. 253, 254 (2008). (2008). 254 . 253, J.

. NSTINCT I UR , 109 P , 109 SYCHOL note 137, at 535, 538 (stating that “many 137, that “many make the 538 note theorists at 535, (stating P

. , 43 E , OC supra S Social Functionalist Frameworksfor Judgment and Choice: Intuitive ORGIVENESS F note 211, at 463. 463. at 211, note PPLIED PPLIED A

Arlene M. Stillwell et al., al., et Stillwell M. Arlene & supra supra Rage and Reason: The Psychology of the Intuitive Prosecutor It appears that the acceptance of members who have transgressed is, at at is, transgressed have who members of acceptance the that appears It ASIC see also Peter Strelan Jan-Willem & van Prooijen, McGeer & Funk, at 545 (providing, as an example, M ;

215 . 781, 782 (1999). (1999). 782 . 781, See See Id. Id. Id. See Philip E. Tetlock,Philip E. Tetlock, Maintaining a community of a certain size requires forgiveness, lest elimination of Even the simple act of priming participants with the idea of an opportunity opportunity an of idea the with participants priming of act simple the Even , 30 , 30 B VOLUTION OF THE Early humans needed to develop an automatic, universal mechanism to assure assure to mechanism universal automatic, an develop to needed humans Early 214 E 214 215 216 217 218 211 212 213 M K HE SYCHOL least in part, dependent upon victims being able to get their just deserts. The authors deserts. The authors get their just able to being victims upon dependent part, least in behaviours and human in regulating playsa role crucial “punishment that conclude re- a contrary of benefits group and interpersonal individual, the coexistence—yet established.” well also are forgiveness, sponse, to punish (as opposed to priming an inability to punish) resulted in a greater rate of of rate in a greater resulted punish) to inability an priming to opposed (as to punish forgiving. D. Punishment, Forgiveness, & ReconciliationD. Punishment,& Forgiveness, terestingly, they become primed to punish, more sensitive to factors that could in- could that factors to sensitive more punish, to primed become they terestingly, factors. crease andsympathetic less to culpability, mitigating nection independent of explicit utilitarian goals of curbing bad behavior in the fu- the in behavior bad curbing of goals utilitarian explicit of independent nection ture.

transgressors results in the dwindlingthe group to maladaptively of small numbers. Deserts Just for Punishing of Effects T stronger case that a retributive [view of human psychology] has genuine adaptive value;” also, blaming reactions that “communicate is a premium on a to normativelythere loaded message offenders and thereby initiate a process in them of reflective self-transformation”). Politicians, Theologians, and Prosecutors P Goldberg et al., Goldberg et al., 2020] RETRIBUTION RETRIBUTION 2020] 1381 pros- as “intuitive behave they thatunpunished, went wrongdoing prior of formed perpetrators. other by wrongdoing subsequent responding to ecutors” when Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM more nuanced view of the just deserts instinct would involve consideration of the the of consideration involve would deserts instinct the just view of more nuanced disap- communicating only not the transgressor—of of reforming important goal trans- the of confirmation receiving only and not behavior, the offensive of proval gressor’s understandingmoral of the indignation, also but knowledgetrans- that the future. for the is reformed and lesson, her learned has gressor is repentant, reinforcement of norms of cooperation, but they also needed a mechanism for rein- a mechanism also needed they but cooperation, of of norms reinforcement member. society wayward the tegrating portance of the affective aspect of punishment, concluding that “[s]eeing offenders portance “[s]eeing offenders affective aspect punishment, of concluding of that the feelsuffer better.” for victims helps actions their Revenge C Y 42938-lcb_24-4 Sheet No. 128 Side A 02/02/2021 10:18:46 A 02/02/2021 128 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 128 Side B 02/02/2021 10:18:46

, M K 223 C Y

222 In other words, a In other words,

224 . This would have been important as as important been have would This e. After all, if the primary purpose of of purpose the if primary all, After e. m van Prooijen hypothesized that vic- hypothesized Prooijen m van Studies on the relationship between between relationship on the Studies 221 219 note 8,note at 85 party punishment is central (“Third onged them, they feel satiated, and this this and feel satiated, they them, onged to correct the transgressor has been fulfilled, fulfilled, been has the transgressor correct to supra supra note214, at 545, 550. supra supra Evaluation of a Rapist as a Function of Expressed Intent and Remorse Jordan & Rand, note 134, at 304. 304. at 134, note . 525, 525 (1992). (1992). 525 . 525, Forgiveness is essential because it allows groups to maintain a a maintain to groups allows it because essential is Forgiveness see also 220 supra at 551 (finding that the idea of restoration is an important one that played a critical SYCHOL P at 545;

. Strelan & van Prooijen, Id. id. See Id. Vidmar, et al., Kleinke L. Chris OC S

Psychologists Peter Strelan and Jan-Wille and Psychologists Peter Strelan “Apologies serve the dual purpose of helping to integrate the offender back into into back offender the integrate to helping of purpose dual the serve “Apologies 219 220 221 222 223 224 a review of studies of defendants convicted of homicide, Sundby found that jurors jurors that found Sundby homicide, of convicted defendants of studies of a review benefits of a contrary response, forgiveness, are also well established.” well also are forgiveness, response, aof contrary benefits makes the punishment less necessary. Individuals areinfluenced only not by formal, spokenapologies, also but by signals that individualsfeel fortheir regret actions, in example, For future. in the similarly behave to likely less are they suggesting that Kleinke, Wallis, and Stalder conducted an experiment that found that a rapist’s ex- a rapist’s that found that an experiment conducted and Stalder Wallis, Kleinke, pression of remorse lessened recommended prison sentences

132 J. 132 to human morality, and plays a key role promoting cooperation.”). in 1382 1382 REVIEW LAW & CLARK LEWIS that a perpetrator— hears someone that when tell us forgiveness and punishment are then they a consequence, party—received a third or them victimized who has forgive. to able 24.4 [Vol. the develop not did humans If for survival. other each on reliant were early humans their individual, the ousted or killed instead and transgressor, the restore to ability longer no group was of the where the size the point to dwindled have may groups regulating in role a crucial plays punishment short, “In survive. to large sufficiently and group interpersonal the and individual, humancoexistence—yet behaviours Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM that individual can be restored to the group. restored can be that individual steady population, in spite of the fact that the individuals in the population are not are not population the in individuals the that fact the of in spite population, steady instinct the err. Once and may perfect, tims seeking just deserts were able to forgive their offender after taking the oppor- the taking after offender their forgive to able were deserts just seeking tims achieve victims jus- when that concluded authors The tunityhim punish to or her. who wr person the punishing tice by satisfactionin turn facilitates forgiveness. signalfrom transgressor the rules that indicatesof recognitionthe created the by socialand pactacknowledgment of his violationlessens need the for punishment, outrag moral of the sense lessens therefore and of acceptance then behavior, on deviant a check as to serve is outrage of the feeling the behavior to repeat not learned has the transgressor that and communication fault the group and helping to reaffirm the moral basis of the rule that was violated.” that was the rule of basis reaffirm to the moral and helping the group role in the preservation of earlycommunities). of human the preservation in role 42938-lcb_24-4 Sheet No. 128 Side B 02/02/2021 10:18:46 B 02/02/2021 128 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 129 Side A 02/02/2021 10:18:46 , at 425. 425. at Less ex- Id. 227 Q., Fall 2015, AST AST E IDDLE , M Honor Killing Attitudes Amongst

225 353, 355 (2008). Harmful intentions intentions Harmful (2008). 355 353, sensitivity to thesensitivity to harm actually caused by 1557, 1564–65 (1998). (1998). 1564–65 1557, . 405, 405–06 (2013). Honor crimes receive receive crimes Honor (2013). 405–06 . 405,

. EV R EHAV

OGNITION B L. VictimImpact Testimony and the Psychology of Punishment , 108 C , 108 ORNELL GGRESSIVE , 83 C , 83 Manuel Eisner & Lana Ghuneim, 39 A Crime and Punishment: Distinguishing the Roles of Causal and and Causal of Roles the Distinguishing Punishment: and Crime

, When WomenWhen Commit Honor Killings The Capital Jury and Absolution: The Intersection of Trial Strategy, See at 360–61. Id. Id. . 419, 423–25 (2003). Empirical research on the psychology of justice justice of psychology the on research Empirical (2003). 423–25 . 419, . at 406..a discussion at For of instances wherewomen participate in honor EV Id R at 360. The effects of belief, desire, and consequences on judgments of blame blame of judgments on consequences and desire, belief, of effects The 360. at

at 423–24. at “[H]arm is a critical factor in people’s views about just punishments, However, specific features of the situation or context vary, depending depending vary, or context the situation of features specific However, L. Id. Id. 226 . at 405.. Controversial international examples include an Italian penal code which Id For instance, “honor crimes” are “acts of violence committed against female family Scott E. Sundby, E. Sundby, Scott Janice Nadler Mary R. Rose, & The processes individuals undergo to determine whether others deserve pun- deserve others whether determine to undergo individuals The processes ORNELL 227 225 226 M K are generally additive. killings, see Phyllis Chesler, permitted reduced sentences whofor men killed their adulterous wives, daughters, or sisters until 1981, and provisions of the Jordanian Code which until 2001, sanctioned a man to a range of three months to two years in prison for killing his wife or female relative after catching her in an bed.” “un-lawful normative support in their culture—they are “often deliberate, committed collectively by by collectivelycommitted deliberate, “often are culture—they in their support normative criminal justice leniently the by and treated by community, the condoned family, a of members system.”

memberswho are perceived to have brought shamefamily to theby engaging in dishonorable acts,” such as “premarital sex, adultery, out wedlock, of pregnancy and even mere contact with a man who is not a relative.” Jordan Amman, in Adolescents 1, 1–11. Remorse, and the Death Penalty 2020] RETRIBUTION RETRIBUTION 2020] 1383 de- sentence, a life or verdict a death in resulting cases all almost in that reported trial. the during aemotion of lack exhibited fendants Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM 88 C upon specific cultural norms. An act that is seen as a serious violation in one culture culture one in violation a serious as seen is that act An norms. cultural specific upon efforts violent example, For in another. tolerance or with positively be viewed may are and children, society, of such as married women certain members to control others. in are criminalized they while even societies, in some sanctioned treme examples of differing norms exist within a single society, among members of of members among society, a single within exist norms differing of treme examples alone are found to be sufficientwarrant to moral punishment, even in the absence of any harmful consequence. E. E. Reactions Moral in Differences Cultural ishment or help of has the character being and based automatic upon universal kinds of factors. supports the idea that people’s punishment judgments are guided to a large degree by harm-based, by harm-based, degree large to a guided are judgments punishment people’s that the idea supports retributive psychology, including the ideas that punishment judgments track the harm caused by they the crime for the criminal of deservingness perceived and the crime, of severity the the crime, committed. and harm is not rendered irrelevant simply because it is adventitious or unforeseen.” the agent. Fiery Cushman, Cushman, Fiery the agent. Intentional Analyses in Moral Judgment Human judgments of the moral wrongness of a behavior relyagent’s on the mental state,while human judgments deserved punishment of show greater C Y 42938-lcb_24-4 Sheet No. 129 Side A 02/02/2021 10:18:46 A 02/02/2021 129 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 129 Side B 02/02/2021 10:18:46

M K 229 C Y ORAL . 673, . 673, M ONITOR ULL M B

. . . 1643, 1650 1650 . 1643, CI S EV R Sticks, Stones, and AND THE THE AND

, Private Confederate Confederate Private SYCHOL L.

. . The Confederate Flag: A A Flag: The Confederate HI HRISTIAN HRISTIAN OC C S

IOLENCE , C V &

, , 77 U. ECENCY . 591, 598 (2016) (discussing examples examples (discussing (2016) 598 . 591, D

: Jessica Owleyet al., ERSONALITY g violence;” street-oriented peopleestablish EHAV B

TREET , 30 P . S e1, e2–e3 (2013) (arguing that a high rate of of rate high a that (arguing (2013) e1, e2–e3 see also also see Desmond Upton Patton et al., UM Q. 719, 721–24 (2017).For a discussion of the role

H . . (forthcoming . (forthcoming Feb. 2021) (discussing removal and Pathways to Early Violent Death: The Voices of Serious CI EALTH EV S

see also see also H . Down with the Southern Cross: Opinions on the Confederate Confederate the on Opinions Cross: Southern the with Down R On the Assignment of Punishment: The Impact of General- of Impact The Punishment: of Assignment the On

; .

OL L.

ODE OF THE Id. Why the Amish Forgive So Quickly So Forgive Amish the Why UB P C

228 OMPUTERS , (Oct. 23, 2018, 10:58 AM), https://www.washingtonpost.com/ https://www.washingtonpost.com/ AM), 10:58 (Oct. 2018, 23, J.

. LARK , 132 P , 132 Behavior that is viewed as socially undesirable by certain by certain undesirable as socially that is viewed Behavior M C OST

P , 65 C , 65 230 (2000). (2000).

& , A . Realism on Change in Moral Intuitions Similarly, cultural norms can shape how one views the violation violation views the one how can shape norms cultural Similarly, NDERSON ITY A ASH 231 C EWIS EWIS , W LIJAH NNER E I Derek D. Rucker et al., et al., D. Rucker Derek Joseph B. Richardson et al., , Donald, B. Kraybill, Scott H. Huffmon et al., , 25 L Cultural differences can also shape how life events are interpreted. To the the To interpreted. are events life how shape also can differences Cultural See See See See E.g. Darley, John 232 These moral intuitions are just as ingrained as the majority of moral codes. moral of majority the as ingrained as just are intuitions moral These 232 231 228 229 230 IFE OF THE THE OF IFE Monuments based upon different codes. different upon based 150 Year Battle of the Confederate flag in American culture, see Frances Stead Sellers, Sellers, Stead Frances see culture, American in flag the Confederate of BattleFlag in South Carolina “poverty, joblessness, violence, alienation, lack of faith in the police and the judicial system, and how influences that ‘code’ culture street a neighborhood produced have hopelessness (Oct. 2, 2007), https://www.csmonitor.com/2007/1002/p09s02-coop.html. https://www.csmonitor.com/2007/1002/p09s02-coop.html. 2007), (Oct. 2, politics/the-confederate-flag-a-150-year-battle/2018/10/23/622ae7e2-d179-11e8-83d6-291fcea politics/the-confederate-flag-a-150-year-battle/2018/10/23/622ae7e2-d179-11e8-83d6-291fcea d2ab1_story.html?utm_term=.8af653c0b8cb; of a law, and whether a particular violation is taboo or accepted as business as as business as accepted or is taboo violation a particular whether and of a law, usual. For example, in certain parts of the United States, the flying of a Confederate flag flag a Confederate of flying the States, United of the parts certain in For example, country, the of parts other in while bigotry, and intolerance of a symbol as is viewed pride of a symbol as commended or even tolerated be may flag same of the flying the in southern heritage. sub-cultures in the United States may afford others “street credibility,” allowing for for allowing credibility,” “street others afford may States United in the sub-cultures exact can vulnerable where appearing safetyinner-cityneighborhoods, and status in a variety of costs. (2010). (2010). Offenders Youth Violent members Facebook gang of using accounts and posts boost develop or to their street credibility). generally See L Severity of Role Moderating the and Threat Societal 1384 1384 sub-cultures.Certain sub-populations haveadopted vastlydifferent moral intuitions REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM

673 (2004) (showingwhen that feel participants the social that order is threatened, behave they crime). a moderate-level of punitively perpetrator a more toward individuals . . . negotiate interpersonal violence.”) The code of the street is a “set of informal rules rules informal of “set a is the street of The code individuals . violence.”) . interpersonal . negotiate relocation of Confederate of relocation monuments). Facebook Accounts: What ViolenceOutreach Workers Know About Social Media and Urban-Based GangViolence in Chicago that govern interpersonal public behavior, includin extent that judgments about intent, consequences, and behavior—or behavioral re- behavioral behavior—or and consequences, intent, about that judgments extent norms cultural or justification, a legal excuse to relevant sponses triggers—are to and enforce the rules, but their norms oppose mainstream values and everyone must “know the “know must everyone and values mainstream oppose norms their but the rules, enforce and the consequences.” suffer or rules 42938-lcb_24-4 Sheet No. 129 Side B 02/02/2021 10:18:46 B 02/02/2021 129 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 130 Side A 02/02/2021 10:18:46 . 165, . 165, EV R

. OC James J. Sing, J. Sing, James S

& See

The Cultural Defense: , 35 L. to inflict pain on another person in in person another on pain inflict to e ancient adaptive nature of the retri- the of nature adaptive e ancient

235 Research has shown that when citizens do do citizens when that shown has Research 233 . L.J. 241, 241 (1996). (1996). 241 241, . L.J. note 23, at 618 note (internal omitted). citations MMIGR I

. TheAnte ExFunction of the Criminal Law supra EO proliferation of a range of manifestations of Heider’s “ought “ought Heider’s of manifestations of a range of proliferation , 10 , 10 G V. RETRIBUTION AS MENTAL HEURISTIC HEURISTIC AS MENTAL RETRIBUTION V. L.J. 1845, 1846 (1999); Sharon M. Tomao, Note, Note, Tomao, M. Sharon (1999); 1846 1845, L.J. ALE The importance of social agreement on norms and the adherence of indi- of adherence the and norms on agreement social of importance The Cultural differences have been used as a basis for a criminal defense. et al., Darley M. John Aharoni & Fridlund, 234 Culture as Sameness:Toward a Synthetic View of Provocation and Culture in the Criminal Regardless of the particular manifestation of the retributivist instinct, it appears appears it instinct, retributivist the of manifestation particular the of Regardless If human punishment is driven largelyretribution, by and retribution is ar- whether ask we can we are forced to judgments, heuristic way of by at rived decisionmaking heuristic serves us such judgments. Sometimes trust At other times,. however,. even. well. the most common heuristic inclinations can be plainly wrong, asresearch in psychology has long warned. For might impulses that how shows behavior infanticide research on example, have benefitted our ancestors’ individual fitness may not be useful to societal groups. Likewise, it remainstopic a of continued debate as whether to and goals. serves prosocial when retribution Retributivist impulses have less in common with utilitarian methodologies methodologies utilitarian with in common less have impulses Retributivist The pervasiveness of the instinct, along with evidence from evolutionary biol- evolutionary from with evidence along the instinct, of The pervasiveness 233 234 235 , 108 Y , 108 M K that their state followed the rule of the majority of jurisdictions). of the majority of rule the followed state their that not know what the law is, they infer what it is by referencing the majoritarian the majoritarian is by referencing it what infer they is, law know what the not norm. Traditional or Formal? or Traditional viduals to these norms in determining whether in determining norms these to viduals function the that idea the supporting evidence itself, of and in is, group the social and cooperation. is ofcoherence punishment group The very cultures. in all

165 (2001) (finding that residents of a state with minority positions on criminal codes indicated indicated codes criminal on positions minority with state a of residents that (finding 165 (2001) Note, Note, Law 2020] RETRIBUTION RETRIBUTION 2020] 1385 interpretations. varying explain may Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM bution drive. At the same time, modern approaches to social problem-solving and and problem-solving social to approaches modern time, the same At drive. bution legitimacy the question to reason provide utilitarianism and rationalism of rise the of this ancient heuristic. and decision-mak- of evaluation methods frugal” and “fast other than do with they ing. evolutionary as Just pressures have resultedemotional adaptive in reactions, heuristics cognitive and social of development the to led also have pressures these human helps that thumb, of or rule shortcut, mental is a A heuristic biases. and ogy, psychology, and anthropology, reveals th reveals and anthropology, psychology, ogy, force” suggests the innate humanness of it. However, as mentioned earlier in this in this earlier mentioned as However, it. of humanness the innate suggests force” bi- identified with commonalities shares also it below, in detail discussed and piece culture. human every pervade similarly that ases C Y 42938-lcb_24-4 Sheet No. 130 Side A 02/02/2021 10:18:46 A 02/02/2021 130 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 130 Side B 02/02/2021 10:18:46

. . : M K A See See EV EV C Y An R R ]. ].

. 238 L.

. NN ATIONAL LASSICS IN HI R C C ANDBOOK OF H , 62 A , 62 (1957); Herbert Herbert (1957); HE , 77 U. , 77 1 T ETTING OCIAL AND Heuristics and biases biases and Heuristics S in S . 1655 (2010) [hereinafter [hereinafter (2010) . 1655 ANDBOOK OF , cognition is “shaped by by “shaped is cognition

237 , EV H A bias is a predisposition a predisposition is A bias R

AN OCIAL OCIAL L. 236

S . 99 (1955) [hereinafter Simon, Simon, [hereinafter (1955) . 99 M . HI XFORD CON C O

HE HE Heuristic Decision Making T , 77 U. , 77 ime collaborator, Amos Tversky, ques- Tversky, Amos collaborator, ime ODELS OF OF ODELS in The notion that people are boundedly boundedly are people that The notion EHAVIOR IN A , M , 69 Q.J. , 69 B Some Realism About Punishment Naturalism

239 , . 293 (1985) (introducing the notion of “bounded “bounded of notion the (introducing (1985) . 293 1 (Martin Lodge et al. eds.,2016). Simon was a prolific

UMAN IMON at EV S TheEvolution of Cognitive Bias H Human Naturein Politics: The Dialogue of Psychology with ,

. A. ]. CI S Some Realism About Punishment Naturalism

A Core of Agreement of A Core . 968, 968 (David M. Buss ed., 2d ed. 2016). 2016). ed. 2d ed., Buss M. (David 968 968, ATIONAL ATIONAL Herbert A. Simon, AdministrativeBehavior:Study of Decision- A OL R

P ERBERT ERBERT

. H M DMINISTRATION A SSAYS ON SYCHOLOGY ]; Herbert A. Simon, A. Simon, ]; Herbert E P , 79 A , 79 A Core of Agreement of A Core Martie G. Haselton et al., al., et Haselton G. Martie A BehavioralA Model of Rational Choice See generally . 451, 454 (2011). 454 . 451, OLICY AND Michael Mintrom, Gerd Gigerenzer & Wolfgang Gaissmaier, Wolfgang & Gerd Gigerenzer See Donald Braman et al., Donald Braman et al., P Thequick andautomatic natureof much of human decision-making wasfirst 239 236 237 238 ATHEMATICAL VOLUTIONARY UBLIC SYCHOL studied by Herbert Simon, a psychologist, sociologist, and political scientist who who scientist political and sociologist, psychologist, a Simon, Herbert by studied rationality.” “bounded term the coined flight response). The decision to run will, on balance, create the greatest likelihood the greatest likelihood create on balance, to run will, decision flight The response). is the aof bias example An strategy. always the best it is not although for survival, unfa- are that situations and people and avoid to distrust for individuals tendency situa- and people unfamiliar for distaste this Although to them. dissimilar or miliar as characterize we what in result it can today, point, at some protective was tions ethnicity, religion, race, of their basis the on people against prejudice unwarranted the indi- from different that make them other characteristics or orientation, sexual evaluator. vidual generally a host of demonstrable and perhaps nearly universal cognitive biases and heuristics, heuristics, and biases cognitive universal nearly perhaps and demonstrable of a host accidents.” or pressures evolutionary of product the are which of all or many scholar. rational (or “satisficers”) refers to human beings’ need to make decisions quickly, quickly, decisions make to need beings’ to human refers “satisficers”) rational (or other and Simon constraints. cognitive and with information, withoften limited and psychologist Prize-winning such as Nobel rationality, bounded of proponents longt his and Kahneman Daniel economist rationality” to account for the fact that human beings have finite computational human beings available that have resources the fact rationality” for account to choices). making for A. Simon, A. Simon, example of a heuristic is the tendency to run when an animal is charging (note the the (note is charging an animal run when to is the tendency a heuristic of example fight-or- the of automaticity the and survival for this heuristic between relationship 1531, 1567 (2010) [hereinafter Braman et al., et al., Braman [hereinafter (2010) 1567 1531, Organization in Administrative Processes Making P M P E Braman et al., 1386 1386 information. limited with decisions quick beings make REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) decision-making quick for allowing rules automatic humans provide to evolved notes, article one As survival. for necessary was action when 1/18/2021 5:23 PM

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. Barbara AW AND An im- L 244 , 5 J. L J. , 5 SYCHOL see also see also P Choices, Values, NCYCLOPEDIA OF 1 E EHAVIORAL in , OGNITIVE Prospect Theory:Analysis An C

, 3 note 239; B s about the state of the world, supra supra , note 241, at 170. “Behavioral decision theory” theory” decision “Behavioral 170. 241, at note beings process information and make choices). (Daniel Kahneman & Amos Tversky eds., 2000) 2000) eds., Tversky Amos & Kahneman (Daniel supra supra , 263, 263–291 (1979); Daniel Kahneman & Amos Amos & Kahneman Daniel (1979); 263, 263–291 Daniel Kahneman & Amos Tversky, Tversky, Amos & Kahneman Daniel

Moral Realism and Heuristics the Debate RAMES F note 237, at 979 (discussing biases related to disease (Boudewijn Bouckaert & Gerrit De Geest, eds., 2000). 2000). & Gerrit De eds., Bouckaert (Boudewijn Geest,

AND CONOMICS , Daniel Kahneman & Amos Tversky, Tversky, Amos & Kahneman Daniel E supra supra A Behavioral Model A Behavioral L.J. 1408, 1428 (1979) (“[S]tudies show that in making individu- making in that show (“[S]tudies (1979) 1428 1408, L.J. CONOMETRICA See Whereasassumes RCT that individuals haveperfect mem- 791–92

ALUES Rational Choice Theory in Law and Economics . ALE 240 V

, AW AND 790, Simon, Simon, , 47 E , 47 L many others have largely outlived their usefulness. their outlived largely have many others supra , 88 Y 243 The body of empirical work demonstrating irrationality in human in human irrationality demonstrating work empirical of body The HOICES Law and the Crystal Ball: Predicting Behavior with Statistical Inference and Indi- and Inference Statistical with Behavior Predicting Ball: Crystal the and Law C 241 (Cass R. Sunstein ed., 2000); Moreover, while many of our automatic mental processes can serve a processes can serve mental our automatic of many while Moreover, in

Haselton et al., CONOMICS , EHAVIORAL E 339,347 (2013) the availability (discussing representative of heuristics); 242 Subjective Probability:Judgment A of Representativeness See B Thomas S. Ulen, S. Ulen, Thomas See generally Gerd Gigerenzer, a German psychologist, has spent most of his career examining the most examining has of spent career his a German Gerd Gigerenzer, psychologist, 244 242 240 241 243 M K NALYSIS CONOMICS AW AND in legal frameworks, see Mark Kelman, Kelman, Mark see frameworks, legal in or “behavioral law and economics” comprise findings on a range of heuristics and biases, including anchoring and adjustment, optimism bias, representativeness heuristic, hindsight bias, conjunction fallacy, endowment effect and relatedquo status bias, risk aversion, and the availability heuristic, in addition to others. of Some features these human decision-making of are discussed in Part IV, whenhuman beings make decisions have evolved to allowhuman beings to function in a complex world in which complete consideration of all features of the decision task is impossible. Gigerenzer has devoted muchhis of work to defending human decision making, calling it “fast-and-frugal,” and identifying conditions under which fast and automatic processes can lead to optimal decision- making in certain situations. Risk Under Decision of D. Underwood, Judgment vidualized useful function, 430–54 (1972). For some earlylaw review pieces discussing heuristical processing and responses alized judgments people rely information primarily the case on about at hand, paying relatively little background to information attention cases.”). other about

A transmission, sexuality, and other evolutionary processes, and noting that humans possess a bias (discussing empirical investigations of how human L E Frames and 2020] RETRIBUTION RETRIBUTION 2020] 1387 tioned rationalchoice theory (RCT), which claims gains. own their imize people behave rationally tomax- Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM portant objective of our modern-day psychological study is to discover how and and how is to discover study psychological our modern-day of portant objective ories, no biases, and limitless capacity to process information, the empirical work work empirical the information, to process capacity and limitless no biases, ories, Studies assumptions. these contradicts rationality bounded for basis formsthat the in social and cognitivepsychology reveal thatpeople make broad generalizations, guesse educated arrive at to shortcuts use cognitive and exhibit predictable biases in their interpretation of events, outcomes, and social social and outcomes, events, of interpretation in their biases predictable exhibit and information. adaptive nature of mental shortcuts. Gigerenzer’s natural manifest is that tendencies that claim the choice had reached a critical mass by the turn of the last century, and today, the the and today, last century, ofmass the by the turn a critical reached choice had is processes of range unconscious wide a by influenced are conclusion that people of network an extensive revealed socialirrefutable.In short, has research science interrelatedandas that the basisfor of heuristics biases serve decision- much human making. Tversky, Tversky, C Y 42938-lcb_24-4 Sheet No. 131 Side A 02/02/2021 10:18:46 A 02/02/2021 131 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 131 Side B 02/02/2021 10:18:46

. M K OL C Y Rational , 13 P , 13 Six Views of of Views Six Ackerman et et Ackerman . 116,140, 144 11, 36 (1998). 36 (1998). 11, RGANIZATION OF OF RGANIZATION see also see O ; ELINQ The large and grow- The large Id. D

245 & ITERATURE L

. RIME RIME CON E

SSAY ON THE ON THE SSAY E , 29 C Telling More than We Can Know: Verbal Verbal Know: We Can than More Telling N , 36 J. A . 625, 625 (2002).

: Amos Tversky & Daniel Kahneman, Kahneman, Daniel & Tversky Amos EV ve, but now is of limited usefulness, and and usefulness, limited of is but now ve, to affect the ways people represent the problem problem ways the represent people to affect the This effect, called framing, leads individ- leads framing, called effect, This R

. 231, 231 (1977); Margaret Wilson, Wilson, Margaret (1977); . 231, 231 Public Opinion and Capital Punishment:A Close . S251 (1986). For early discussions of framing, see see framing, of discussions early For (1986). . S251 & 246

. EV NALYSIS US R A B

. ULL B See generally See tgroupsless are generous and kind, and more dangerous and , 59 J. , 59 RAME RAME SYCHOL For example, physicians and patients prefer a particular a particular prefer patients and physicians example, For , F Implicit bias Implicit thatbias is an example kept may have of ancienta Psychology and Economics 247 Id. , 84 P Prospect Theory and Political Analysis: A Psychological Perspective SYCHONOMIC OFFMAN G , 9 P Social psychological literature is rife with examples in which people people in which examples with is rife literature psychological Social (Ne. Univ. Press 1986) (1974). (1974). 1986) Press Univ. (Ne. Matthew Rabin, RVING Eldar Shafir, 311, 313–14 (1992) (“Framing refers to the tendency of normatively inconsequential inconsequential normatively of tendency the to refers (“Framing (1992) 313–14 311,

. note 108, at 2–3 (discussing the behavioral immune system’s role in preserving societies See See See Phoebe C. Ellsworth & Lee Ross, Ross, Lee & Ellsworth C. Phoebe 1. Framing 1. Framing presented are choices which in way the decisions, making are people When To the extent that humans are intuitive retributivists, they must reconcile this this must reconcile they retributivists, intuitive are humans that extent To the 246 247 245 supra XPERIENCE SYCHOL are ordered or described. are ordered impacts a decision-maker’s preference. a decision-maker’s impacts ing literature on heuristics and biases (motivated reasoning) provides the ideal win- ideal the provides reasoning) (motivated biases and heuristics on literature ing process. of type this into dow generally E changes in the formulation of a choice problem and, consequently, their preferences.”). their consequently, and, course of treatment when they are told that 90% live through the postoperative the postoperative through 90% live that are told when they treatment course of uals to pick one option over another specifically because of how the various options options various the how of because specifically another over option one pick to uals ExaminationViews of theAbolitionists of and Retentionists P E toward inferring that members of ou toward of inferring that members ill-tempered.) This bias might been have adaptive for ancestral humans, because “the costs of low[er] . . . the outweigh to likely were aggressor an the of part on peacefulness assuming falsely are inaccurate about the basis of their attitudes and behavior. and attitudes of their the basis about inaccurate are 1388 1388 formation choice optimal prevent intuitions and social ancient cognitive when these so thoughtfully can we that address the predispositionswilldecisions that bad lead to and biases heuristics the of some describes below overview The brief and outcomes. evolu- an served past, in the have, biases These decisions. to irrational lead that can REVIEW LAW & CLARK LEWIS glimpses into how past their function. tionary Understanding provides usefulness adapti once was instinct the retributivist ways. important and predictable in harm cause even may 24.4 [Vol. A. Cognitive Biases This goals. utilitarian value to tend who selves sentient rational, their instinct with new. is nothing Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM

Reports on Mental Processes Mental on Reports (1983); Richard E. Nisbett & Timothy DeCampTimothy (1983); Nisbett Wilson, & Richard E. Embodied Cognition Choice and the Framing of Decisions via unconscious bias against group memberswith heuristicsof infection risks). cost of elevated vigilance.” vigilance.” elevated of cost al., humans safe by encouraging interaction with in-group members wholikely were more to cooperate and less likely to pose an existential threat. Today, implicit bias is condemned as manifesting in unconscious predispositions against out-group members. 42938-lcb_24-4 Sheet No. 131 Side B 02/02/2021 10:18:46 B 02/02/2021 131 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 132 Side A 02/02/2021 10:18:46

249 see also see also . 313,317 EV . 1015, 1023 1023 . 1015, R

L. . 723, 735 (1993) (1993) 735 . 723, ECONSIDERING THE THE ECONSIDERING Stimuli that have that have Stimuli SYCHOL option to present the AME R P SYCH

254 . D P

in . , OC 253 S OC

OTRE S

& & Human responses Human framing to , 82 N , 82 251 ERSONALITY P ERSONALITY ERSONALITY h early exposure to a stimulus sensitizes sensitizes stimulus a to exposure early h

TakingBehavioralism Seriously: The Problem of P who is propounding an Cognition, and Awareness: Affective Priming with Understanding Patients’ Decisions: Cognitive and and Cognitive Decisions: Patients’ Understanding Democratic Discussion

d emotional reactions to subsequent targets targets to subsequent reactions emotional d 72, 73 (1993). (1993). 72, 73 , 58 J. , 58 N ’ note 241, at 2–4. Framing is described by prospect by prospect described is Framing 2–4. 241, at note , 64 , 64 J. Affect, SS . 630, 684–85 (1999). (1999). 684–85 . 630, A

. Frames, Biases, and Rational Decision-Making in the Human EV A Focus Theory of Normative Conduct: Recycling the Concept supra supra ED R

M L.

. M A

363 (George E. Marcus & Russell L. Hansoneds., 1993);

Researchers Hansonand have Kysar that “framing noted ef- . Id 250 Framing Effects and Regulatory Choice 347, 74 N.Y.U. 74

, 270 , 270 J. , Donald A. Redelmeier et al., et al., A. Redelmeier Donald 684, 686 (2006). (2006). 686 684, Nash, Nash, UBLIC

P Put simply, priming increases cognitive accessibility, so concepts that that concepts so accessibility, cognitive increases priming simply, Put see also see also CIENCE Kahneman & Tversky, Tversky, & Kahneman DonaldKinder R.Don Herzog, & at 36–37. Robert B. Cialdini et al., Jon D. Hanson & Douglas A. Kysar, ; 255 than when they are told that 10% die during the postoperative period. the postoperative during die 10% that told are they when than Their effects are so powerful that some conclude that framing strategies strategies framing that conclude that some powerful so are Their effects See Sheila T. Murphy & R.B. Zajonc, Id. Id. See See Benedetto De Martino et al., See 248 252 2. Priming 2. Priming in whic situation the describes Priming , 313 S 313 , 254 255 248 249 250 251 252 253 M K EMOCRATIC basisfor these responsesandhave discovered that framing the effectassociated is theory, which articulates two claims: first, individuals assign more significance to a loss than they do to an equivalent gain; second, people overweigh low probabilities and underweigh moderate and high probabilities. Manipulation Market are so profound because human beings are hardwired to be influenced by rhetorical rhetorical by influenced be to are hardwired beings human because profound are so to respond to evolved has brain human the how examined have Researchers shifts. physiological the at looked have researchers some imaging; brain using by frames “can become freewheeling exercises in pure manipulation.” exercises freewheeling “can become or events. been primed will influence cognitive an cognitive influence will primed been The fact that these two statements convey identical information makes the change change the makes information identical convey statements two these that The fact irrational. in choice Optimal and Suboptimal Stimulus Exposures Brain (2006) (calling framing “the ability of someone Places Public in Littering Reduce to Norms of D with activity in the amygdala, an area of the brain responsible for processing emo- processing for responsible brain the of area an amygdala, the in activity with tions. Jonathan Remy (1990) of all,incorporate although not explanations (“Most, the notion priming of effects spreading activation, which posits that similar are linked within concepts together a in memory network of nodes and that activation of one concept resultsspreading of the in the activation along the network to other relatedconcepts.” (citations omitted)). 2020] RETRIBUTION RETRIBUTION 2020] 1389 period Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM target. a similar or the same of presentation later a to the subject fects are somewhat different from the other cognitive anomalies that have been iden- been have that anomalies cognitive other the from different somewhat are fects of exploitable obviously most the perhaps are They researchers. by behavioral tified on based reversals preference dramatic causing of instance, for capable, the biases, an entirely nonsubstantive shiftin terminology.” Emotional Perspectives option . . . in such a way as to . . . make the option seem more or less desirable”). desirable”). less or more seem the option make . . . to as way a such . . . in option C Y 42938-lcb_24-4 Sheet No. 132 Side A 02/02/2021 10:18:46 A 02/02/2021 132 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 132 Side B 02/02/2021 10:18:46 M K 1 C Y in , Amos Amos . 1124, . 1124, CI see also , 185 S 185 , A commonly A commonly 250, 255 (Peter (Peter 255 250, 259 As a result, their

that the initial value value initial the that 262 CIENCE S Category Accessibility: Some Some Accessibility: Category aware . 657, 660 (2001); (2001); 660 . 657, OCIAL S

SYCHOL ISK IN IN ISK P

261 R .

First Offers as Anchors: The Role of Perspective- OC in 258 , S

. 305, 323 (2010). (2010). 323 . 305, 161 (E. Tory Higgins et al. eds., 1981). 1981). eds., et al. Higgins Tory 161 (E. & When asked about the frequency of plane plane of frequency the about asked When Availability: A Heuristic for Judging Frequency and EV R 260

. R YMPOSIUM S 207, 207–08 (1973). (1973). 207–08 207,

. ERSONALITY ERSONALITY note 255, at 735–36. 735–36. at 255, note P

The Power of Priming in Legal Advocacy: Using the Science of First First of Science the Using Advocacy: in Legal Priming of The Power , 89 O , This response is particularly likelywhen the subsequent The Media and Risk and Media The Judgment Under Uncertainty: Heuristics and Biases and Heuristics Uncertainty: Under Judgment 257 supra supra NTARIO , 81 J. SYCHOL O P HE Robert S. Wyer, Jr. & Thomas K. Srull, Srull, K. Thomas & Jr. Wyer, S. Robert T

: OGNITIVE

Kathryn M. Stanchi, 256 . at 250, 255. 255. 250, . at , 5 C OGNITION Adam D. Galinsky & Thomas Mussweiler, Cf. Kahnerman, Daniel & Tversky Amos Emma Hughes et al., Id See generally See Murphy & Zajonc, C Priming is not purely concept based. Emotions can also be primed so that de- that so primed be also can Emotions based. concept purely not is Priming 3. Cognitive Availability relates availability Cognitive priming. to related closely is availability Cognitive 4. Anchoring 4. Anchoring un- they value, initial an provided are people when that shown has Research 258 259 260 261 262 256 257 OCIAL cited example is a plane crash. Plane crashes tend to be cognitively available because because available to be cognitively tend crashes Plane crash. a plane is example cited events. catastrophic are dramatic, they information is relevant to the earlier, emotion-triggering information. For example, example, For information. emotion-triggering earlier, the to is relevant information react to likely more people makes crime a violent of aftermath of the images viewing relevance the of regardless defendant, a criminal to condemnation and anger with crashes, individuals search their memories and are readily able to come up with ex- with up come to able are readily and memories their search individuals crashes, peo- leads to mind examples past bring can individuals which with ease The amples. Taylor-Gooby & Jens Zinn eds., 2006). 2006). eds., Zinn Jens & Taylor-Gooby

Impressions to Persuade Reader the Probability Taking and Negotiator Focus (finding that millisecond-long encounters with negative or positive stimuli can produce non- specific emotional reactions to unrelated stimuli). Information Stimulus Social of Processing the Concerning Issues Empirical and Theoretical S 1390 1390 at the moment impact the greatest have will brain the from retrieved easily are most of choice. a particular caused has that to information exposed been have who cision-makers REVIEW LAW & CLARK LEWIS isconsistent information a way in that subsequent to respond stateaffective will state. with the emotional 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM estimation of a correct value is unduly influenced by whatever value they saw ini- saw they value whatever by influenced unduly is value a correct of estimation are they when even true is anchor to tendency This tially. to the tendency of individuals to overestimate the frequency of a situation based based a situation of frequency the overestimate to individuals of tendency to the mind. to or outcome that situation it is to bring easy upon how consciously “anchor” on that value and adjust away from it. from away adjust and value that on “anchor” consciously 1128 the anchoring (1974) (explaining effect). of the photos to the defendant’s culpability. defendant’s the to photos of the ple to overestimate the probability of the event. the of probability the overestimate to ple Tversky & Daniel Kahneman, Kahneman, Daniel & Tversky 42938-lcb_24-4 Sheet No. 132 Side B 02/02/2021 10:18:46 B 02/02/2021 132 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 133 Side A 02/02/2021 10:18:46

Id. 264 266

, 32 , 32 J. 269 Id. ERSONALITY ERSONALITY . 1037, 1039–41 1039–41 . 1037, , 18 P Perseverance in Self- Perseverance that their clients are are clients their that The difference between between difference The Contextualist Answers to SYCHOL Id. P . 167, 168 (1991). For a a For (1991). 168 . 167,

. 1, 14 (2002) (“I do not for for not do (“I (2002) 1, 14 . . ED EV OC R M S

& &

. Lee Ross et al., et al., Ross Lee U.

. CI T S S

. . inely form the belief belief the form inely Belief Perseverance, Biased Assimilation, and and Assimilation, Biased Perseverance, Belief depending upon whether the buyer or or the buyer whether upon depending LA OC . 27, 38–40 (1997). (1997). 38–40 . 27, see also see also ERSONALITY ERSONALITY P EHAV , 30 F

at 882–84 (noting that, even after having been shown shown been having after even that, (noting 882–84 at B , 32 S , 32

. Coerced Confessions and the Jury: An Experimental Test of of Test Experimental An Jury: the and Confessions Coerced Remarkably, decisions about what to pay or ac- or pay to what about decisions Remarkably, UM note 262, at 660–61. 660–61. at 262, note Overconfidence Among Physicians and Nurses: The ‘Micro- The Nurses: and Physicians Among Overconfidence , 39 J. , 39 H 263

Perseverance of Social Theories: The Role of Explanation in the in the Explanation of The Role Theories: Social of Perseverance & supra note 265, note . 880, 880, 891 (1975). AW supra . 555, 555–57 (1992); 555–57 555, . , 21 L , 21 Empirical evidence has revealed that experts are particularly are particularly that experts revealed evidence has Empirical

SYCHOL hibit beliefsconsistentwith the original, false feedback). P

ULL For example, jurors are significantly more likely to convict a de- a convict likely to more jurors are significantly For example, 268 . People who are provided with information persist in using the in- the in using persist information with provided are who People B

267 . OC 265 S

, Ross et al., et al., , Ross & at 661. When seller-students made the opening offer, they first offered to sell the the sell to offered first they offer, opening the made seller-students When 661. at SYCHOL Id. P Craig A. Anderson et al., et al., A. Anderson Craig Saul M. Kassin & Holly Sukel, Andrea O. Baumann et al., Craig A. Anderson & Kathryn L. Kellam, e.g. See, Galinsky & Mussweiler,

. 5. Belief Perseverance 5. Belief Perseverance “belief called to change—is “sticky”—resistant be forto beliefs The tendency 267 268 269 264 265 266 263 OC S M K

ERSONALITY ERSONALITY final purchase price (depending upon who set the initial offer)was $5.1 million dollars. perseverance.” discussion on over-confidence bias, see William A. Edmundson, When buyer-students made the initial offer, they first offered to buy the plant for an average of average an for the plant buy to offered first they offer, the initial made buyer-students When $16.5 million, and the average final purchasewas $19.7 price million. Skepticism, and What a Lawyer Cannot Know plant for an average of $26.6and the million, average final purchase price was $24.8 million. guilty.”). guilty.”). a moment deny that criminal-defense lawyers rout lawyers deny that criminal-defense a moment (1980). (1980). confident in the veracity of their own judgments and are resistant to change. are resistant to and judgments own their of the veracity inconfident cept were influenced by anchoring, in spite of the fact that all students knew that that knew students all that fact the of in spite anchoring, by influenced were cept interests. other sides’ against the working was offer initial the made who the party One study on perceptions of personality traits andprofessions showed that people risk between association positive or a negative was there that believe to led who were even when information the to this belief, adhered ability firefighting and preferences was discredited. formation to form judgments, even when expressly told that the information was was the information that told when expressly even form judgments, to formation studies. empirical in demonstrated repeatedly been has finding This incorrect. Persistence of Discredited Information Discredited of Persistence Certainty, Macro-Uncertainty’ Phenomenon CovariationDetection: The Effects Hypothetical of Social TheoriesNew and Data & P the “Harmless Error” Rule is random or even far too high or low. For example, in a study in which business business which in study a in RETRIBUTION 2020] 1391 example, For low. or high too far even or random is found researchers a company, purchase to negotiate to asked were students school different, vastly was price purchase that the Wilson_EIC_Proof_Complete (Do Not Delete) price. initial the proposed seller 1/18/2021 5:24 PM

fendant who has confessed, even when there is good reason to suspect the validity the validity to suspect reason good is there when even confessed, who has fendant confession. of the the experiment materials that randomly assigned participants to various feedback conditions, people continued to ex Perception and Social Perception: Biased Attributional Processes in the Debriefing Paradigm Debriefing the in Processes Attributional Biased Perception: Social and Perception C Y 42938-lcb_24-4 Sheet No. 133 Side A 02/02/2021 10:18:46 A 02/02/2021 133 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 133 Side B 02/02/2021 10:18:46

M K 274 C Y ALEM tabula tabula , S (2019). (2019).

. 480, 480–81 480–81 . 480, ULL Tabula rasa Tabula B

. 792–93

790,

. SYCHOL 273 EV R

, 108 P 108 , U.

. Janine Ungvarsky, E See See 11 N

Confirmation Bias and Other Systemic Causes of , The list presented here is merely a a sam- here is merely presented list The

271 There is ample evidence that people rationalize rationalize people that evidence ample is There note 265, at 556–57. 556–57. at 265, note 272 supra note 182, at 47. 47. at 182, note The Case for Motivated Reasoning Motivated for The Case processing data in the world. Rather than starting fresh in starting fresh than Rather world. in the data processing (2017), https://biblioteca.sagrado.edu/eds/detail?db=ers&an=87325096. https://biblioteca.sagrado.edu/eds/detail?db=ers&an=87325096. (2017), supra supra , AIDT Anderson & Kellam, Kellam, & Anderson Ziva Kunda, H “Tabula rasa” is the ancient Greek term for “blank slate”—the notion that one proceeds proceeds that one “blank notion slate”—the term for “Tabula ancient Greek rasa” is the See See See Pollock, M. Joycelyn & Rossmo Kim D. fashion, the brain makes sense of what is already known, or interpretations or interpretations is already known, of sense brainfashion, what makes the NCYCLOPEDIA

E In addition to the pattern-based biases, social scientists have discovered a host a host discovered have scientists social biases, the pattern-based to In addition reach conclusions beings human by which is a process Motivated reasoning 1. Confirmation Bias Bias 1. Confirmation in the of discussion deal a great of the subject been has bias The confirmation The automatic cognitive predispositions discussed above can be characterized characterized be can above discussed predispositions cognitive automatic The 270 270 271 272 273 274 RESS the instinct for by in engaging post-hocrevenge rationale. The confirmation bias relates to the tendency for decision-makers to erroneously erroneously to decision-makers for tendency to the relates bias The confirmation pling; many more biases and mental shortcuts that could be characterized as “fast “fast as characterized be could that shortcuts mental and biases more many pling; researchers. behavioral by identified been have frugal” and are above biases the that Note biases. motivational as classified are that of biases decision-maker. of the interest the against operate or neutral motivationally either uncon- often more conscious—or serve some in contrast, biases, Motivational peo- ego-related; is need this Often decision-maker. the of part the on scious—need consistent. and moral, competent, as themselves perceive to drive a psychic ple have in individual an portray would of information interpretations logical certain When infor- that or ignore discredit, often discount, will individual that light, a negative interpret will individual the ambiguous, is information when Conversely, mation. self- of reinforcement and preservation the with consistent most is that a light in it serving goals. Biases B. Motivational or goal. desire some satisfy that

without the influence of any preexisting tendencies. preexisting any influence the without of P 1392 1392 REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM criminal justice literature, largely due to the prevalence of wrongful convictions. wrongful of prevalence due to the largely literature, justice criminal that are most readily available. The automatic tendency to see patterns and draw on on draw and patterns to see tendency automatic The available. readily most are that efficient allows for it in that adaptive evolutionarily is and experiences data existing of uncertainty. cases in decision-making Wrongful Convictions: A Sentinel Events Perspective Events A Sentinel Convictions: Wrongful rasa as the tendency for the human brain to come preprogrammed to see consistencies consistencies see to preprogrammed to come brain for the human tendency the as when and patterns (1990). (1990). confirm preexisting beliefs by selectively out informationseeking or interpreting 42938-lcb_24-4 Sheet No. 133 Side B 02/02/2021 10:18:46 B 02/02/2021 133 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 134 Side A 02/02/2021 10:18:46

. 3 . 949, . 949, There There

SYCHOL CIENCE TUD 275 S S . . 999, 1011 1011 . 999, ERSONALITY ERSONALITY Prosecutorial . P 512, 516–18 516–18 512,

EV R , 115 P , 115 In the case of of case the In

CON ESISTS ESISTS E L. R

279 . . , 58 J. IBERTY O L EV

the application of social

74 M

, 80 R , 80 , J.L. This bias has been been has bias This

282

NFORCEMENT . 183, 197 (2007); Alafair Burke, Burke, Alafair (2007); 197 . 183, E 280 EV R

Prosecutorial Administration: Prosecutor AW L L. Directional goals become relevant Directional relevant goals become , 2 N.Y.U.

. HY HY 278 ARQ W

: . 271, 313 (2013); Alafair S. Burke, S. Burke, Alafair (2013); 313 . 271, The Trouble with Overconfidence with Trouble The Accuracy simply relates to the need human human need to the relates simply Accuracy EV

R , 91 , 91 M

277 L.

at is consistent with that existing belief existing that with is consistent at VIDENCE . A E Rachel E. Barkow, E. Barkow, Rachel 99 V

, AILED Overconfidence and Social Signalling Social and Overconfidence The Overconfidence Effect in Social Prediction in Social Effect The Overconfidence see also also see , F Researcher Ziva Kunda has identified two typesof goals: uenced their interpretation. their uenced 276 A Recipe for Bias:An Empirical Look at the Interplay Between Institutional ARRIS note 272, at 481–83. 481–83. at 272, note H

A. notes 64–70 and accompanying text. . 568, 576 (1990). (1990). 576 . 568, supra supra One explanation for overconfidence is that people fail to account for for to account fail is people that for overconfidence One explanation at 481. 481. at 482–83. at

AVID 281 D at 483. 483. at SYCHOL Kunda, id. See id. See Id. al., et V. Burks Stephen al., et Dunning David See supra See P

(exploring the question of why investigators and prosecutors resist .

502, (2008) the multidimensionality502 (describing of overconfidence as “(a) 2. Overconfidence Bias choices own their in confident overly are beings human of majority The vast

277 278 279 280 281 282 275 276 . OC S M K

EV science findings to their work); to science findings Bias and the Department of Justice beings have to be correct in their judgments. in their correct be to beings have the uncertainty of situational variables when making judgments, and hence fail to fail andthe uncertainty situational of hence to variables judgments, when making downward. confidence adjust their appropriately is a two-part explanation for the confirmation bias. The first is an efficiency expla- efficiency is an first The bias. confirmation for the explanation is a two-part “solve to attempts mind human the earlier; discussed the biases to related nation, fueled also bias can be confirmation Second, way. effortful in the least the puzzle” goals. by motivational 950 (2013); Don A. Moore & Paul J. Healy, J. Healy, Paul & A. Moore Don 950 (2013); R & (2012) Neutralizing Cognitive Bias:Invitation An to Prosecutors (2009). 2020] RETRIBUTION RETRIBUTION 2020] 1393 in a th way information ambiguous Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM directional goals, Kunda explains that in order to avoid psychic discomfort, deci- discomfort, psychic to avoid order in that explains Kunda goals, directional preex- a that recognizing avoid to objectivity” of “illusion an maintain sion-makers infl has preference isting accuracy goals and directional goals. and directional accuracy goals (2007); Barbara O’Brien, O’Brien, Barbara (2007); to relative performance (b) one’s actualperformance, of overplacement one’s of overestimation in one’s and (c) excessive precision beliefs”). others, Passion, Cognitive Bias, and Plea Bargaining and skills. anytime an individual desires a particular conclusion or outcome. or conclusion a particular desires individual an anytime Incentives and Bounded Rationality in Prosecutorial Decision Making Decision in Prosecutorial Rationality Bounded and Incentives C Y 42938-lcb_24-4 Sheet No. 134 Side A 02/02/2021 10:18:46 A 02/02/2021 134 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 134 Side B 02/02/2021 10:18:46

. M K 285 US C Y , 87 B

Charles See The self- , 20 J. , 20 289 Plea Bargaining Bargaining Plea 403–04 (2006)

393, . 2098, 2105, 2107–08 2107–08 2105, . 2098, A similar bias, called called bias, A similar 127, 128 (2012). (2012). 128 127, consumer behavior, consumer SSUES 290 I 284 SYCHOL Attributional Comparisons Across Across Comparisons Attributional P YSTEMS

. . 80, 82 (2003). (2003). . 80, 82 S erconfident than Others? than erconfident ion: The Effects of Prior Theories on on Theories Prior of The Effects ion: OC S GMT

ANAGERIAL M & gers to favor subordinates with whom they subordinates favor they withgers to whom M UPPORT

and mental health professionals’ judg- professionals’ health mental and S Confidence in Judgment: Persistence of the Illusion Illusion the of Persistence Judgment: in Confidence r or against, regardless of which side they are on, 286 . 2463, 2498 (2004). When people receive new new receive people When (2004). 2498 . 2463, Heuristics Biases and Bargaining at the Table EV stock purchases, , 18 J. ORTFOLIO R L. 133, 133 (2010) (finding that “lawyers were were “lawyers that (finding (2010) 133 133, L.

Insightful or Wishful: Lawyers’ Ability to Predict Case ECISION ECISION P

283

ERSONALITY ERSONALITY L.

P & .

Y ’ , 53 , 53 D ARV , 29 J. , 29 OL , 37 J. P

. Consumer-Based Decision Aid that Explains Which to Buy: Decision . 395, 396 (1978). (1978). 396 . 395, Overconfidence Bias in International Stock Prices: Consistent Across Across Consistent Prices: Stock International in Bias Overconfidence among other contexts. Other biases, such as priming, an- such as priming, Other biases, contexts. other among UB , 117 H , 117 Are Some Entrepreneurs More Ov More Entrepreneurs Are Some Whenforming attitudes or making judgments, peopletend P EV note 68, at 572 claim (“A that a judgment about fairness is self-serving

287 R .

288 . supra 636–37 (2005). (2005). 636–37

SYCHOL Biased Assimilation and Attitude Polarizat Attitude and Assimilation Biased SYCHOL Constance R. Campbell & Cathy OwensSwift, . 795, 800–01 (2004). (2004). 800–01 . 795, 623, EV R , 85 P , 85

, 16 P , 16 As Stephan Bibas has noted, in the case of well-meaning decision-makers, “the more Wee-Kek Tan et al., et al., Tan Wee-Kek Jane Goodman-Delahunty et al., Hillel J. Einhorn & Robin M. Hogarth, Russell Korobkin & Chris Guthrie, Farnsworth, Daniel P. Forbes, et al., James Scott see also see L.

. 3. Self-Serving Bias 3. Self-Serving Bias way a in events interpret to individual an for atendency is bias The self-serving 290 285 286 287 288 289 283 284 ARQ ENTURING ENTURING self-serving bias insidious is itspotential cause to well-meaning actors who have been serving bias becomes dangerous inserving a situations bias becomes decision-maker’s interests in which replete is history course, Of another. to harm cause or irrationally unfairly to her lead the makes another—what one against beings human by perpetuated atrocities with otherwise. do to decisions just and fair make to entrusted choring, and belief perseverance, often work hand-in-hand with overconfidence. overconfidence. with work perseverance, hand-in-hand choring,often and belief confirmation the and likely, particularly judgments certain make Cognitive biases the reexamining of possibility the on foreclosing beliefs, the cement to serves bias judgment. oneself. that benefits Biases and Leader-Member Exchange Status (1979); (1979); overconfident in their predictions . . . . Female lawyers were slightly better than their calibrated slightly were lawyers Female . . . . overconfident in their predictions lawyers’ predictions about trial outcomes, trial about predictions lawyers’ to do so with reference to that which is most personally advantageous. personally most is which that to reference with so do to

M Outcomes Bibas, Stephanos bias.” for there is room the more people have, information Outside Shadow the Trial of Confirmation or Overconfidence Bias? Overconfidence or Confirmation of Validity V Environments Trading and Countries 1394 1394 demonstratedin business ventures, REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM G. Lord et al., al., view. preferred their own of supportive as evidence ambiguous same the they interpret et Lord G. information about a policy that they are either fo Subsequently Considered Evidence ments about patients, ments about (discussing can cause mana self-serving bias how the typically is a counterfactual about a would value judgment: [you] not be arguing X that outcome is fair if it were not advantageous to [you], or if [you] did not have a stake in the resolution of the dispute.”). male counterparts and showed evidence of less overconfidence”). overconfidence”). less of evidence showed and counterparts male 42938-lcb_24-4 Sheet No. 134 Side B 02/02/2021 10:18:46 B 02/02/2021 134 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 135 Side A 02/02/2021 10:18:46

. see see

294

476

295 SYCHOL 475, P

. . Psycholo- OC 292 GMT S M

note 238, at 1567; 1567; at 238, note , 12 J. , 12 supra supra , XPERIMENTAL XPERIMENTAL E

Valuing Thoughts, Ignoring Behavior: Behavior: Ignoring Thoughts, Valuing , 43 J. , 43 Q. 43, 50 (1992) (identifying situations 133, 133 (2008). (2008). 133 133, In other words, as Haidt has argued, argued, has as Haidt words, other In 369, 369 (2002). (2002). 369 369,

296 . The Actor-Observer Bias and Moral Intuitions: Intuitions: Moral and Bias Actor-Observer The note 238, at 1655. EADERSHIP EADERSHIP ULL

EUROETHICS B

. The Bias Blind Spot: Perceptions of Bias in Self Versus Versus Self in Bias of Perceptions Spot: Blind Bias The

, 3 L supra supra

291 , 1 N SYCHOL P

. OC S

& Some Realism About Punishment Naturalism Punishment About Realism Some note 293, at 369–70. at 293, note Emily Pronin & Matthew B. Kugler, A CoreAgreement, of supra supra Pronin and her colleagues found that, while participants had little dif- little had participants while that, found colleagues her and Pronin

Self-Serving Biases in Leadership: A Laboratory Experiment A Laboratory Leadership: in Biases Self-Serving at 565; Emily Pronin et al., ERSONALITY ERSONALITY at 374–76. 374–76. at 293 Thomas Nadelhoffer Adam Feltz, & generally See Id. Pronin, Id. Braman et al., , 28 P Like other automatic impulses that influence decision-making, the retributivist retributivist the decision-making, influence that impulses automatic other Like 4. Bias Blindspot 4. Bias Blindspot tenden- cognitive our own of many so about be to we tend how unaware Given 291 292 293 294 295 296 Braman et al., M K Importantly, when it comes to our moral intuitions, “it appears that . . . our moral our moral . . . that appears “it intuitions, our moral to it comes when Importantly, we whereby bias well—a as bias actor-observer by an influenced also are intuitions even ourselves hold would we than standards moral different to people other hold situation.” the same in we were if human society constructs norms and values around the instinct and often largely often largely and instinct the around and values human norms society constructs ficulty perceiving biases in third parties, they rated themselves to be less biased. less be to themselves rated they parties, in third biases perceiving ficulty C. C. as Bias Retribution heuristicto seek leads just deserts humans automatically, thisis instinct even when Behavioral law scholarsand Hoff-irrational Kahan,or counterproductive. Braman, and by with that function “interacting cognitive traits,” “innate man identified have under- [human] determine that ultimately meanings of social a variety generating wrongdoing.” to reaction and of standing Even after receiving information about research on the unconscious nature of biases, of biases, nature unconscious on the about research information Even after receiving cies, it is unsurprising that we have trouble perceiving our own biases. our own perceiving have trouble we that cies, it is unsurprising Others Adding Fuel to Sinnott-Armstrong’s Fire Sinnott-Armstrong’s to Fuel Adding Spot Blind Bias the of Source a as Illusion Introspection The in which “follower” a might over-identify withleader a trusted hence and fail to question the bias). the self-serving of because actions leader’s (2007). 565 also have positive relationships or similar in-groupmembership status); Gregory H. Dobbins & Jeanne M. Russell, (1986) to P. Hollander, subordinates); Edwin management how (describing attributes failures Leadership, Followership, Self,Others and Pronin’s participants continued to rate themselves as low with respect to bias. respect with as low themselves to rate continued participants Pronin’s 2020] RETRIBUTION RETRIBUTION 2020] 1395 their view to people causes bias, attribution fundamental or bias actor-observer the and praise-worthy, sympathetic, more asunderstandable, own actions relatively insame others. actions the or unfairly condemning devaluing while simultaneously Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM

gist Emily Pronin coined the term “bias blind spot” after conducting studies exam- after blind studies spot” conducting “bias the term Pronin coined gist Emily biased to with respect others and themselves evaluated individuals ining how attitudes. C Y 42938-lcb_24-4 Sheet No. 135 Side A 02/02/2021 10:18:46 A 02/02/2021 135 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 135 Side B 02/02/2021 10:18:46

, . M K ]; ]; 299 OC C Y S

Cass & 303 . 171, 171 171 . 171, EV R

. note 71, at 295. 295. 71, at note is still an appro- an still is Sentencing Strategies ERSONALITY ERSONALITY CON P E like a natural guid-

. supra supra T C the same as those pro- as those the same Punishment Goals of Crime Crime of Goals Punishment feels

. , 36 J. UP not Sentencing Strategies and Justice Some evidence suggests that that suggests evidence Some , 11S 297 Carlsmith et al., . 255, 266 (1982) [hereinafter McFatter, McFatter, [hereinafter (1982) 266 . 255, retribution heuristic heuristic retribution and when juries punish criminal acts, punish acts, juries criminal when and jective desire for retributionjectivefor desire is appropriate. also

301 Unlike punishment based upon some some upon based punishment Unlike see . 143, 145 (2006). (2006). 145 . 143, ent is virtually impossible to verify. impossible ent is virtually SYCHOL 302 P Emotions and Attributions of Legal Responsibility and EHAV B note298, at 260;Orth, Uli

. PPLIED PPLIED UM A

supra supra H

Purposes Punishment: of Effectsof Utilities Criminal of Sanctions The Expansion of Criminal Registries andIllusion the of Control note 60, at 1323–24; Robert M. McFatter, , & note 83, at 286; 286; at 83, note

. 173, 181–82 (2003). (2003). . 173, 181–82 So, although individuals are unconsciously motivated by by motivated are unconsciously individuals So, although supra , 67 J. , 67 On the Psychology of Punishment supra supra 298 , 30 , 30 L. EHAV B

]. ]. . When legislators craft When legislators are typically laws, they respond- criminal UM 300 H

& . 509, 511 (2013).

Robert M. McFatter, Carlsmith et al., EV Purposes of Punishment R . 1490, 1499–1500 (1978) [hereinafter McFatter, McFatter, [hereinafter (1978) 1499–1500 . 1490,

Fiske & Tetlock, Wilson, Walker J. Molly Cass R. Sunstein, This distinction becomes clear comparing when two rationales for punishing a child. If a Neal Feigenson & Jaihyun Park, See See , 27 L. L.

. Judgments about punishment are typically a product of outrage regarding the the regarding of outrage a product are typically punishment about Judgments Human societies have developed complex criminal justice systems designed to to designed systems justice criminal complex developed have societies Human A 300 301 302 303 297 298 299 SYCHOL Perhaps any reaction that satisfied the parent’s sub on Perceived Appropriateness Perceived on ing to the indignation of their constituents, their of indignation the ing to retaliation, their intent is to fashion consequences in a way that maximizes utility. maximizes in that afashion way consequences is intent to retaliation, their Purposes of Punishment McFatter, McFatter, Victims they are often motivated by outrage. by motivated often are they norm violation. agreed-uponobjective, punishment based upon an emotional reactionis variable, and Justice: Effects of Punishment Philosophy on Sentencing Decisions Sentencing on Philosophy Punishment of Effects Justice: and 73 L child throwsa toy at anotherand the child basis for a parent’s subsequent action is satisfaction of a desire to give the child “what he deserves” it is difficult to say whether the consequence is appropriate. Is it sufficient to a spanking? put Does the child the child “deserve” in a timeout? Blame: A Research Review A Research Blame: P ing principle for punishment because it results from an emotional response that has that has response anfrom emotional it results because punishment ing for principle history. evolutionary in human roots deep response so that the automatic revenge of the usefulness norms reinforce behavioral society, human early from looks society modern different how Given in question. is the of whether question a serious there exists 1396 1396 Retribution indisputable. as meanings collective these treats REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM used “irrationality” for test One punishment. for deciding principle priate guiding whether a ask others, is to decision-and economists, by ethicists, scholars, legal make she would that heuristic the by produced choice the same make would maker reasoning. effortful slow, in engaging were if she

punishment decisions resulting from gut intuition are intuition gut from resulting decisions punishment duced by slow, effortful decision-making. When people are asked to think carefully carefully to think asked are people When decision-making. effortful slow, duced by exclusively based those avoid to tend they scheme, punishment optimal the about harm- utilitarian, favor often they Instead, model. a retributivist on primarily or minimizing solutions. (2004). (2004). and the appropriateness of the punishm the of appropriateness and the 42938-lcb_24-4 Sheet No. 135 Side B 02/02/2021 10:18:46 B 02/02/2021 135 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 136 Side A 02/02/2021 10:18:46 the toy, the goal is the toy, the The dart-thrower The dart-thrower 307 imperfectly testable through testable imperfectly The “just deserts” model fo- model deserts” “just The

ed against the result. Teaching was was Teaching result. the against ed Before she threw the dart, the thrower the thrower dart, the she threw Before to “pay” restitution to the victim, by “pay” restitution to theto giving the victim, child refrains from throwing child 306 Achieving this goal is xtremely difficult to translate outrage into the the into outrage to translate difficult xtremely context. Sunstein argues that members of juries fail to to fail juries of members argues that Sunstein context. In other words, these outrage-based punishment out- punishment outrage-based these words, In other , while the deterrence model targets behavior or outcomes. outcomes. or behavior targets model deterrence the , while 305 note 153, at 350–51. 350–51. at 153, note note 302, at 172. intent y again is sufficient. supra supra supra at 351. 351. at

Sunstein, Id. Cushman, Id. The arbitrariness ofthese patterns of punishment has consequences concrete Like other irrational tendencies that can result in suboptimal outcomes, basing basing outcomes, that in suboptimal can result tendencies other irrational Like 304 304 305 306 307 M K terms that the legal makeslegalterms relevantthe that system the system so] [and risks incoherence irrational- of akind show [which] patterns unpredictable and erratic of sense in the ity.” victim a toy. Thesevictim be can also conjunctively, restitution effect. The maximum methods used for benefit, a experiences toy the receives who child the because effects positive additional for allows simultaneously. accomplished world are the of that improve the state positive goals that two so cuses on punishing rather than learning, intent-based Empirical suggests research outcome-based that teacher. the benefit would color choices expressed her target color choice to be measur to be choice color her target expressed (when intent “wrong” for was the punished either thrower the dart so that regulated outcome. “wrong” the or color) no-reward the she picked accomplished. Moreover, other creative methods of preventing the behavior can be attempted. attempted. can be behavior the preventing of methods creative other Moreover, accomplished. made educated, or can be child For example, the from throwing the to from throwing the experimentation. If, followingtimeout, the the

However, if the punishment goal is the utilitarian objective of deterrence, then the minimal the then deterrence, of is the utilitarian objective goal punishment if the However, the child preventing of the goal the upon accomplish will child that misery imposed of amount 2020] RETRIBUTION RETRIBUTION 2020] 1397 e is “it that out pointed has Sunstein Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM within the criminal justice criminal within the punish- retribution-based of their product the of outputs irrational the recognize judgments individual Sunstein, to when jurors make According ment decisions. they that patterns produce to likely are “they outrage, of feeling their upon based of incoherence—incoher- kind another is The result repudiate. would themselves ex- that are of patterns the sense but in of unpredictability, sense ence not in the to justify.” hard tremely punishment decisions on retributivist instincts decisions on be a punishment can retributivist costly misstep. on Research for better is model utilitarian results-based, a that suggests punishment and learning norms. behavioral desirable getting with compliance learned faster when the teacher targeted the outcome, rather than the intent. In In intent. the than rather outcome, the targeted teacher the when faster learned comes are irrational and often harmful. harmful. often and irrational are comes D. Teaching Outcome-Based Versus Teaching Intent-Oriented learning, is most effective. Researchers trained a dart thrower to learn which of two two of which to learn thrower a dart trained Researchers is most effective. learning, C Y 42938-lcb_24-4 Sheet No. 136 Side A 02/02/2021 10:18:46 A 02/02/2021 136 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 136 Side B 02/02/2021 10:18:46

M K &

C Y One One These These 312 VALUATES note 297, 297, note , 39 , 39 L. 308 E supra , note 299, at 182. 182. at 299, note ETRIC ETRIC note 36, at 204−05; 204−05; at 36, note M supra EW supra

: 310 ATE R be punished, they appear to endorse both endorse appear to be they punished, UNISHMENT

(2016). (2016). note 298, at 267; Orth, Orth, 267; 298, at note Sentencing: Strategiesand Justice

Carlsmith & Darley, P 313 See should The Expansion of Criminal Registries and the Illusion 2–3 HE media and entertainment, and political rhet- political and entertainment, and media supra supra T ,

, to be compelling a utilitarian argument for to a model of RIME RIME C The Rhetoric of Fear andPartisan Entrenchment RUSTS Long after the crime rates in the United States peaked peaked States United the in rates crime the after Long T 311

EPORTED R 509, 542–42 (2013). (2013). 542–42 509,

. EV note 30, at 190, 207. 207. 190, at 30, note 116. at 196, note note 71, at 295; McFatter, HARITABLE HARITABLE R

Purposes of Punishment C L.

. supra supra supra A EW . 117, 142, 144 (2015). ELATIVE TO TO ELATIVE P R EV . at 142; Molly J. Walker Wilson, Wilson, J. Walker Molly 142; . at R HE SE

, 73 L . Molly J. Walker Wilson, Wilson, J. Walker Molly Id Darley, T Darley, Note that to find these results Note that to find these For many years, researchers have been puzzled by the persistence of broad- of persistence the by puzzled been have researchers years, For many U

Retributivist models base punishment decisions on impulse, emotion, and de- and emotion, impulse, on decisions punishment base models Retributivist be that should goals utilitarian be to seem would deterrence crime and Safety

309 309 310 311 312 313 308 SYCHOL RISON at 1491; McFatter, McFatter, 1491; at based fear of crime on the part of the American populace. American the of part on the of crime fear based responsive to public sentiment. In the United States, this instinct is exacerbated by by is exacerbated instinct this States, United In the publicresponsive sentiment. to in violence of portrayal the like factors twenty-first century, in the face of plummeting crime rates, the United States be- States United the rates, crime plummeting face of the in century, twenty-first retributive and consequentialist justifications. Carlsmith et al., and began to drop, polls revealed that the public continued to feel unsafe. feel to continued public the that revealed polls drop, to began and findings support the notion thatautilitarian, rather thanretributivista approach, outcome. best the achieves of Control P P punishment, one must prioritize less crime over punishing bad intent. Researchers have found that when people are askedoffenders why 1398 1398 be- bad deter and behavior desired the encourage to way clearest the words, other the behavior. behind intent the and not behavior on the focus is to havior REVIEW LAW & CLARK LEWIS Choice Emotion-Based of Malleability E. The 24.4 [Vol. is and thus “need” an emotional to is responsive it As a method, pain. inflict sire to influenced is crime to response the Yet crime. of level the in change a to responsive the of decade first the and the 1990s During reality. ratherby than perceptions Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM

came increasingly punitive. oric. explanation for the disconnect between crime rates and punitiveness is a lag in the the in lag a is punitiveness and rates crime between disconnect for the explanation public’s knowledgeabout and risks, a disincentiveforlawmakersfacilitate to the is fear of the rhetoric and motivator, powerful is a Fear public. the of education “creates remarked, has Darley as sentiment, This advantage. political for used often gain politician other some lest crime,’ on ‘soft appearing of politicians among fear against them.” running advantage when 42938-lcb_24-4 Sheet No. 136 Side B 02/02/2021 10:18:46 B 02/02/2021 136 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 137 Side A 02/02/2021 10:18:46

315 ORE M

J. 12S, 14S 14S J. 12S, 314 This figure ORRECTIONAL 316 RISON ., C ., ECREASED BY The Price of Prisons: Prisons: of The Price D TAT S , 91 P , 91

note 319, at 1. As of 2012, 2012, of As 1. at 319, note . ATES R UST supra J , . 68, 68 (2012). States’ corrections corrections States’ . 68, 68 (2012). EP R at 4. Over the past 40 years, the United OWHIG UREAU UREAU Id. C

(2019), https://www.bjs.gov/content/pub/ https://www.bjs.gov/content/pub/ (2019), & , B NCARCERATION I

AIL J ENTENCING ENTENCING AEBLE 82 (1898). 82 (1898). S OWHIG

In the last decades, several a “historically un- . C 319 ED 2016, at 1–2 (2018). (2018). 1–2 at 2016,

, ARY ARY 2017,1 at ROBLEMS M P RISON AND s, 25 F P

TATES

, S & TO Bringing Down the U.S. Prison Population OCIAL note 28, at 87. 87. at 28, note At year-end 2017, the U.S. prison population was 1.5 mil- 1.5 was population prison U.S. the 2017, year-end At S

, 317 NITED 2007 note 30, at 190−91. note 30, at 190−91. AEBLE 320 U supra supra ROGRAMS K P

. EORGE

G supra supra supra UST Id. J

. FROM ENRY ENRY FF ANIELLE The percentage of adults in American prisons makes the United States a a States United the makes prisons in American adults of percentage The VI. HARMS CREATED BY RETRIBUTIVIST PUNISHMENT PUNISHMENT RETRIBUTIVIST BY CREATED HARMS VI. Alfred Blumstein, Mears et al., H Darley, D Darley, O 10% 318 about crime ill-informed and lawmakers of are the public Not only members How vainly shall we endeavor to repress crime by our barbarous punishment punishment barbarous our by repress crime to shall we endeavor vainly How of the poorer class criminals of in long brutalizing the as children reared are so crime! to drives men want of bite as the so long poverty, of influences Scholars identify at least four factors accounting for this increase in the U.S. U.S. in the increase for this factorsfour accounting identifyScholars at least 319 320 314 315 316 317 318 M K OPULATIONS IN THE increase since 1950s. since increase more than 700% since the 1970s. Christian Henrichson & Ruth Delaney, Delaney, & Ruth Henrichson Christian 1970s. the since 700% than more What Incarceration Costs Taxpayer clear global leader in incarceration. leader clear global represents a ten-fold increase since 1971, a year which had already seen a four-fold four-fold a seen already had which year a since 1971, increase ten-fold a represents (2011). (2011). nearly 1 in 100 adults were in prison or jail nationwide. combat crime, and as a result, to prisons of use the increase in dramatic a seen has States by grown population having state prison country’s incarcerations the rates have skyrocketed, with THAN According to the most recent statistics available from the U.S. Department of Jus- of Department U.S. from the available statistics recent most the to According another 2016; year-end at prison in adults 2,162,400 estimated an were tice, there parole. or probation on were States United in the adults 4.5 million

P 2020] RETRIBUTION RETRIBUTION 2020] 1399 Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM rates, but they are mistaken in their faith that “tough on crime” measures work. As As work. measures crime” on “tough that faith their in mistaken are but they rates, been growing. have populations prison and jails dropping, been have crime rates precedented policy shift” has emphasized “tougher, more punitive sanctioning of sanctioning of punitive more “tougher, emphasized has shift” policy precedented sys- of correctional types other and of incarceration use greater including offenders, tem punishments.” spending, including prisons as wellas probation and parole, nearly quadrupled in the period from 2012. to 1992 prison population. These include population growth, a three-fold increase in the the in increase a three-fold growth, population include These population. prison (particu- many crimes of definition expansion of the the sentences, prison length of were activities that many of drug sales), and the criminalization larly concerning press/p17ji17pr.pdf. For 2016 statistics, see K press/p17ji17pr.pdf. 2016 For statistics, lion, and the population of jail inmates in the United States was 745,000 at midyear at midyear was 745,000 States United the in inmates jail of population the and lion, 2017. C Y 42938-lcb_24-4 Sheet No. 137 Side A 02/02/2021 10:18:46 A 02/02/2021 137 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 137 Side B 02/02/2021 10:18:46 , M K ILL C Y W when when only only recidivism The Effect of of Effect The Rhodes et al., al., et Rhodes sentences have have sentences But see But NCARCERATION NCARCERATION increases I at 17S. note 27, at 60S (finding From the perspective perspective the From note 40, at 2159 (pointing Id. ORE ORE 327 M supra note 319, at 18S (finding that that (finding 18S 319, at note

: supra supra As a practical matter, research research matter, practical As a The purported logic behind the the behind logic The purported In the meantime, In the ARADOX 328 322 P Markel, 321 Cullen et al., et al., Cullen RISON Blumstein, see also see Offenders who spent time in prison may “[R]etribution and public the safety constitute P

Cassia Spohn & David Holleran, 329 see also HE

Prison is costly, both in terms of the price to to price the terms of in both is costly, Prison T note 318, at 69. 69. at 318, note see also see at 88;

note 44, at 169. 169. at 44, note 325 at 85. ., 326 Id. see also see also supra Id. UST Moreover, although deterring crime has continued crime has continued although deterring Moreover, supra

sm more than noncustodialsm more than sanctions). . 324 recidivism. note 27, at 59S−60S. 59S−60S. at 27, note NST I note 28, at 19; 19; 28, at note (2017);

note 28,note at 84−85. Additional factors include time the belief that more supra ERA ERA 2 supra V

However, repeated studies have concluded that this attempt to to this attempt that concluded have studies repeated However, increases , note 30, at 194−95. 193. at 30, note note 30, at 190–91; 190–91; 30, at note supra supra 323 AFER S 329, 334−35 (2002) (finding that individuals sentenced to prison had higher higher had prison to sentenced individuals that (finding (2002) 334−35 329, supra supra supra supra supra supra S Hessick & Berman, TEMEN S U Cullen et al., et al., Cullen ; Henrichson & Delaney, ON ON D AKE Darley, Id. See et al., Mitchell See also Mears et al., Darley, Darley, M Spending time in prison or jail impacts an individual significantly, and usually usually and significantly, individual an impacts jail or prison in time Spending note 28, at 733 (finding that73328, increase recidivism, but (finding not at lengthening note term does a prison RIMINOLOGY 325 326 327 328 329 322 323 324 321 OT that prisons do not reduce recidivi supra A. Prison Does Not Deter and Creates Additional Problems Problems AdditionalCreates and Deter Not Does A. Prison benefits society. not in a that way become more structured and increasingly severe. and more structured become produce deterrence is failing. is deterrence produce more effective policing and a growth in the crime rate “contributed hardly at all” to the growth in in growth the to all” at hardly “contributed crime rate in the and a growth policing effective more was attributable growth increases in the entire population; however to the prison “[v]irtually the has shown no beneficial effects of incarceration on recidivism rates, and it may be be may it rates, and on recidivism of incarceration effects beneficial has shown no prison the case that in prison would could or reduce recidivism and that the benefits of incarceration increased would outweigh social or economic costs. N Offenders Drug on A Focus Offenders: Felony of Rates Recidivism on Imprisonment 40 C recidivism rates and recidivated more quickly than individuals sentenced to probation).

1400 1400 offenses. regulatory considered only previously REVIEW LAW & CLARK LEWIS advisors, policy experts, prison, in people keeping for a rationale as advanced to be actually incarceration that years for known have lawmakers and 24.4 [Vol. interest in retributivism negative stems in part from and policymaking that “recent scholarly out problems to associatedreactions with has a stronger recidivism,” “the theory well as fact that as the have”). to seemed once it than rationale Wilson_EIC_Proof_Complete (Do Not Delete) and both retributivist in rates has in States increase United the been incarceration deterrence-based. 1/18/2021 5:23 PM safer. public the not make does and commitment rate and in the time served, especially in time served more recently”). An additional especially recently”). served served, in time more time commitment rate and in the offenders. drug of the recommitment was identified Blumstein factor taxpayers and to the incarcerated individual, who often loses employment, educa- employment, loses often who individual, incarcerated the and to taxpayers in society. and status friends, family, opportunities, tional there arethere significant benefits offset to losses. the ofutilitarian, a incarcerationargue favor in these significant of burdens avowed goals expressed by legislatures.” 42938-lcb_24-4 Sheet No. 137 Side B 02/02/2021 10:18:46 B 02/02/2021 137 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 138 Side A 02/02/2021 10:18:46 On av- Formerly 335 332 note 28, at 761– at 28, note note 28, 118– at supra supra his family, or her likely the more it Mears et al., Mears et that employersless the hire likelythat are to

ped relationship between and time served Id. note 28, at 122 (finding that lengthier of terms children’s prosocial development”); Mears et al., J. 315, 316−17 (2012) (noting that formerly formerly that (noting (2012) J. 315, 316−17 Compare with Crime Pays: The Connection Between Time in Prison Prison in Time Between Connection The Pays: Crime In one study, researchers found that the ma- the that found researchers study, In one supra 330 RISON Research reveals the importance of employment Research reveals of the importance employment 334 . 1377, 1378−79 (2010) (pointing out the pressures inmates the pressures (pointing1378−79 out (2010) . 1377, rience difficulty reintegrating into mainstream soci- into mainstream reintegrating rience difficulty

note 28, at 4–5. 4–5. at 28, note , 92 P note 334, at 1378. 1378. at 334, note 336 EHAV Mears et al., note 28,12–13 at (finding that their studies show a non-statistically B supra

note 334, at 316–17. 316–17. at 334, note &

supra . supra see also note 30, at 193. 193. at 30, note supra UST J Donald T. HutchersonII,

. supra supra Examining the Predictors of Recidivism Among MenWomen and Released from Prison RIM see also see Mitchell et al., al., et Mitchell ; . at 17−18;

Hutcherson, Makarios et al., Mitchell et al., Id See Darley, Id. , 37 , 37 C Many ex-convicts have difficulty finding housing and employment, and the and the employment, and finding difficulty Many have housing ex-convicts 331 note 28, at 88 (pointing out adverse effectson “ties to family and friends, mental and Any deterrent effect created by the threat of incarceration would seem to be be to seem would incarceration of threat the by created effect deterrent Any 335 336 330 331 332 333 334 333 M K physical employment and the ability Matthew health, prospects, access public to housing”); who received non-prison sanctions. non-prison who received face when finding housing on their own). 62 (pointing out that the longer someone “is separated from harms spouses and children,” including loss of income and loss of social support, resulting in “increased reliance on welfare and problems with Makarios et al., in Ohio supra supra jority of re-offenders were non-violent property and drug offenders, and determined determined and drug offenders, and property non-violent were re-offenders of jority effects or substantively imprisonment yields generally that no offenders, for other sanc- alternative to compared reconviction of likelihood on the effects adverse small tions.

19 (concluding that there is an “inverted U-sha19 (concluding that there who those and terms prison served who offenders among recidivism between difference significant received non-prison sanctions). incarceration, beyond a few do not “readily months, appear to reduce recidivism” and may actually increase it). and Future Criminal Earnings Criminal Future and and related income in determining the life course of the ex-incarcerated. of course life the determining in income and related recidivismrather reduces small by amount). a 2020] RETRIBUTION RETRIBUTION 2020] 1401 to offenders comparison in release following reoffending of levels increased exhibit Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM incarcerated individuals expe individuals incarcerated ety. offset by significant collateral consequences of this of punishment. form ofoffset significant by consequences collateral criminal than other options few with leaves them networks social of disintegration to sustain themselves. activity incarcerated offenders stigmatized are by their past and et al., criminal Rhodes records); without those to ex-incarcerated compared erage, inmates have significantly lower levels of literacy and educational attainment attainment educational and literacy of levels lower significantly have inmates erage, stable find to attempts aggravating further population, the general in adults than after release. employment may be no single effect of time served on recidivism and the effect of time served may vary vary may served time of effect the and recidivism on served time of effect recidivism,” at least for inmates serving up to five to six years in prison). This means that there single no be may depending on the specific amount of time served. C Y 42938-lcb_24-4 Sheet No. 138 Side A 02/02/2021 10:18:46 A 02/02/2021 138 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 138 Side B 02/02/2021 10:18:46

. M K at at C Y RIM supra Id. Im- , 40 J. , 40 , 42 J. Violent Violent 337 , 33 C , 33 Id. at 272. 272. at Id. The Effect of Gang Membership a in note 27, at 53S−54S 53S−54S at 27, note 341 note 27, at 53S. supra . at 423. 423. . at Id supra Cullen et al., al., et Cullen Some scholars argue that “prisons in- “prisons that argue scholars Some Cullen et al., et al., Cullen ved to be more trustworthy by a fellow fellow a by trustworthy be more to ved 340 see also see PrisonGang IntegrationInmate and Violence see also The Effect of Prison GangMembership on Recidivism social contacts stigmatizationon the outside, facing upon release, note 334, at 331−32. 331−32. at 334, note note 28, at 1; 1; at 28, note note 27, at 53S. 53S. at 27, note note 334, at 317; 317; at 334, note supra supra supra supra on are often replaced by relationships with other inmates who may may who inmates other with relationships by replaced often are on . 419, 421 (2006). “Many inmates import the values, norms, and experiences experiences and norms, values, the import inmates “Many (2006). . 419, 421 Hutcherson, These relationships forged during a period of imprisonment make make imprisonment period of a forged during These relationships A prison gang member is percei member gang A prison . 425, 426–27 (2012). There has been a significant increase in the number of prison prison of number the in increase significant a been has There (2012). . 425, 426–27 . 267, 268 (2014). Dooley et al. concluded that membership in a prison gang increased increased gang prison a in membership that concluded al. et Dooley (2014). 268 . 267, EHAV 339 Whereas individuals with an incarceration history experience difficulty difficulty experience history an incarceration with Whereas individuals B Cf. al., et Mitchell al., et D. Dooley Brendan Cullen et al., et al., Cullen Morris, G. Robert & Worrall L. John Hutcherson, 342

UST UST J J

& 338 Further, “spending significant time incarcerated can erode the social networks networks social the erode can incarcerated time significant “spending Further, . .

. 340 341 342 338 339 337 RIM RIM UST note762 28, at (discussing the relationship between levels, incarceration and crime, levels the highest have also incarceration of levels highest with the disadvantage—the communities of crimeand disadvantage). association with other offenders, and the general harms of imprisonment); Rhodes et al., imprisonment);harms of Rhodes the general and association offenders, with other prisonment imposes a cost in “social influence[s] that shapes inmates’ attitudes to- attitudes inmates’ shapes that influence[s] “social in cost a imposes prisonment iden- and order, conventional the to networks, ties peer violence, and crime ward tity.” being off cut from family and pro inmate misconduct may be explained as “calculated risk taking”; it is a means of “self-help, self- 427. Additionally, since the typical prison inmate is from community a that already has a gang and culture ties problem, into gang are naturally setting. imported the correctional J inmates “still their imprisonment, while acquired other as members gangs” prior to of street become affiliated with gangs only after incarceration. Gang affiliation is rewarded with social socialsupport, status, personal contraband.” security, and access to C C gangs in recent decades, and prison gangs have become a principal form of inmate organization in many prisons because contraband market. the extensive in-prison gangs protect prison (discussing the costs of imprisonment on the inmate, including the risk of physical victimization, of the risk including the inmate, imprisonment of (discussing on the costs 1402 1402 REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM

reoffending particularly likelyafter release. recidivism by about six percentage points, which was a quantitatively large effect. necessarystable for conventional employmentopportunities” after release. very likely to join gangs, as this is often a method of obtaining protection inside inside ave- new with them provides often prison of employment, forms legitimate finding protection obtaining existed that relationships healthy and of Legitimate income. illegal obtaining nues of method a often is of outside pris this as are gangs, Prisoners prison. of outside enterprises illegal with involvement have continuing join to likely very prisons. prison gang is likely to increase recidivism by signaling a commitment to a criminal a criminal to a commitment signaling by recidivism increase to likely is gang prison re- institutional an invoking and capital, human and social altering lifestyle, sponse. crease offending by serving as ‘schools of crime’ or by stigmatizing offenders in ways in ways offenders stigmatizing or by crime’ of ‘schools as serving by offending crease behavior.” criminal future forpropensity their increase that Affiliation on Violent Misconduct Among Inmates During the Early Years of Confinement of Years Early the During Inmates Among Misconduct Violent on Affiliation defense, or social control by which inmates seek to establish social status, maintainpublic identities, or gain economic benefits.” Marie L. Griffin & John R. Hepburn, 42938-lcb_24-4 Sheet No. 138 Side B 02/02/2021 10:18:46 B 02/02/2021 138 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 139 Side A 02/02/2021 10:18:46

350 351 In

345 349 conditions, or the

344 Sentence Severity and Crime: and Crime: Severity Sentence note 28, 90 at (noting that a supra supra of incarceration, prison treatment and can also then be transmit- be then also and can treatment . 143, 190–91 (2003) (concluding that variation variation that (concluding (2003) . 143, 190–91 Mears et al., In sum, despite the reality that prisons im- prisons that reality the despite sum, In UST Custodial sentences do not reduce recidivism recidivism reduce not do sentences Custodial J

347 348 & see also RIME RIME , 30 C For many crimes, “a prevention strategy that relies on po- on relies For many that “a strategy crimes, prevention note 27, at 54S. note 27, at 53S. 53S. at 27, note 346 Parolees are less likely than the average person to have gainful gainful have to person the average than likely less are Parolees note 30, at 200; 200; at 30, note note 30, at 204. 204. at 30, note 193. at 30, note Anthony N. Doob & Cheryl Marie Webster, Webster, Marie Cheryl & N. Doob Anthony supra supra 352 supra supra supra supra supra Collectively, these factors suggest that offenders become more, rather rather more, become offenders that suggest factors these Collectively, see also . at 197−98 (discussing criminal while acts committed drunk or using mind- other id 343

at 269. 269. at

. at 53S–54S. 53S–54S. . at Darley, See et al., Cullen Id Darley, Id. Id. Id. et al., Cullen Darley, Evidence from behavioral science suggests that in terms of deterring crime, in- crime, deterring of terms in that suggests science from behavioral Evidence Finally, the costs of high levels of incarceration to the public are of the public significant.Finally, incarceration to the costs of high levels 346 347 348 349 350 351 352 343 344 345 M K other aspects of incarceration, aspects of suchother experience as “the prison with sentence length”). accords in which to extent actual time served potential theory underlying the usepotential theory incarceration of as punishment includes about perceptions creasing prison sentences is less effective than other methods of crime control. ofcrime other methods effective than less is sentences prison creasing more than non-custodial sanctions or rehabilitation and prevention efforts. prevention and or rehabilitation sanctions non-custodial more than The cost of holding a person in prison is only part of the overall financial burden. overall part the of only is in prison person a of holding The cost Many behaviorally. and mentally, physically, a toll takes in prison time Spending incarcer- to prior have not did they problems with society reenter prisoners released are prisoners former example, For the on public. costs additional that impose ation or AIDS contracted having society to return to public general the than likely more requires which tuberculosis, drug-resistant pose costs high on offenders for their behavior,appearthey to be“weak a change by im- “moved are not offenders many and deterrence, of in terms agent” specific out of to trouble.” stay prisonment altering drugs); 2020] RETRIBUTION RETRIBUTION 2020] 1403 criminal in cooperation facilitates trust this “and affiliation, his of because inmate activities.” Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM

contrast to increasing a prison sentence for a crime, “campaigns that make salient in in salient “campaigns thata make crime, for sentence prison aincreasing to contrast offense [an] committing for caught of being possibility the public of the mind the are often successful.” in the severity of sanctions is unrelated to levels of crime). levels to crime). of is unrelated sanctions of in the severity tential perpetrators to mentally weigh the consequences of conviction and punish- and conviction of consequences the weigh mentally to perpetrators tential of process ‘thought’ the actual of with the evidence not comport does ment simply incongruent representations mental to is due that whether criminals,” convicted or a crime, committing at aimed individuals of in groups participation reality, with substances. of mind-altering the use than less, criminally oriented due to their prison experience. prison their to due oriented criminally than less, ted to the public. ted to the Accepting the Null Hypothesis Null the Accepting C Y 42938-lcb_24-4 Sheet No. 139 Side A 02/02/2021 10:18:46 A 02/02/2021 139 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 139 Side B 02/02/2021 10:18:46 M K C Y EFORE B t, scholars find t, scholars For these com- these For When previously When previously PPORTUNITY Id. 355 For those who do do who those For O

354 ORK AND is undoubtedly presen , W (2004). (2004).

URNER T prison can the criminal reduce participation of population poses an additional burden. burden. additional an poses population

1293–94

Id. ICHOLAS ICHOLAS

1281,

Id. & note 353, at 10. 10. at 353, note (Mar. 2018),https://www.apa.org/pi/ses/resources/indicator/ Most states “ban individuals with drug felony convictions from 1271, N

’ . Id. supra The Social and Moral Cost of Mass Incarceration in African American American African in Incarceration Mass of Cost and Moral Social The SS OONEY , 7 (2018) (finding that almost half of all ex-prisoners earn less than than less earn ex-prisoners all of half almost that (finding (2018) 7 EV A L

. In short, it is difficult to impossible to defend current incar- current defend to to impossible is difficult In short, it From Prisons to Communities: Confronting Re-Entry Challenges and Social Social and Challenges Re-Entry Confronting Communities: to Prisons From L.

. DAM URNER rtently rig[ged]” because how crimes are prevented estimates compare many 357 T

A TAN SYCHOL & For example, “individuals with past drug or felony convictions are ineligible for A criminal record limits employment prospects, public housing assistance,housing and public prospects, limits employment criminal record A P

. Id. Id. M see also see NCARCERATION , 56 S , 56 I Melissa Li, ; note 27, note this incapacitation at 51S. While effect Because incarceration often disrupts family ties, released prisoners are less are less prisoners released ties, family disrupts often incarceration Because

OONEY , A It is also important to acknowledge that Id. L E. Roberts, Dorothy See 353 356 FTER supra The reality of the costs of imprisoning so many people leads to two inescapable inescapable to two leads people many so of imprisoning costs the of reality The Finally, there is the question of whether the prisoners who end up losing losing up end who prisoners the whether of question the is there Finally, A 357 353 354 355 356 public housing,” and many privaterental housing associations “have policies against renting to incarcerated individuals face barriers to housing, employment, and public assistance, they are more reoffend. to or homeless become likely to people with criminal records.” being eligible for federally public funded assistance and food stamps.” social services. likely to support a dependent child following incarceration. following child dependent a support to likely incarceration. attempt to support a child, there are significant challenges in doing so. As noted by by noted As so. doing in challenges significant are there a child, support to attempt their of many so because suffer entire communities and sociologists, criminologists bars. behind years many so male—spend adults—mostly young AND ceration practices on utility grounds. The second conclusion is related to the first; first; the to related is conclusion second The grounds. on utility practices ceration bars. behind people many so to keep price steep a pays society

Communities Inequality Cullen the community.” break the law that they cannot so in “simply them byoffenders caging 1404 1404 entitle- and services public on be reliant to likely more are so and employment, ments. REVIEW LAW & CLARK LEWIS 24.4 [Vol. Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:23 PM conclusions. The first is that there is a low utility in our current criminal justice justice criminal current utility inconclusions. The firstthere is our a islow that public the if Even significant. and are calculable they the costs vary, system. While prison- and recidivism on data deterrence, for price a pay heavy or to willing were general effective an is conse- of unintended pattern a reveal incarceration rates crime can exacerbate that of factors related threat the that claims refute that quences specific deterrent. months, years,months, decades of lives their imprisonment to arereally deservingof this $500 in their first full year after release from incarceration). 2018/03/prisons-to-communities. People face significant challenges with after re-entry Society at large ends up suffering because of the existence of these blighted commu- blighted these of the existence of because up suffering ends at large Society nities. munities, many of which already face significant challenges, the absence of a dispro- absence of the already significant face challenges, of which munities, many male young their of percentage portionate that it is often “inadve as compared are locked up if offenders doing to nothing to considering them, instead of the effect of imposingnon-custodial a penalty. et al., et al., 42938-lcb_24-4 Sheet No. 139 Side B 02/02/2021 10:18:46 B 02/02/2021 139 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 140 Side A 02/02/2021 10:18:46 is an an is A dis- 360 358 Distortion in our “natu- in our Distortion 359 omic opportunities,omic and that other resources ofoundly ironic exampleof a “natural law” given the para. 2 (U.S. 1776). para. 1776). 2 (U.S. note 291, at 137. 137. at 291, note supra

note 43, at 576. Additional benefits of this type of retribution at 582. 582. at supra NDEPENDENCE I Id. Nadelhoffer & Feltz, Kalstein et al., See beDeclaration to truths self- Independence of The the part of that reads, “We hold these ECLARATOIN OF ECLARATOIN Lately, there has been debate and push-back to this notion that human moral moral that human notion this to push-back and debate been has there Lately, Many behaviors that satisfy an instinctive drive are condemned on moral on moral condemned are drive instinctive an satisfy that behaviors Many D 358 359 360 M K HE goals above the goal of allowing behavior that satisfies an intuitive drive. Equally Equally drive. intuitive an satisfies that behavior allowing of goal the above goals we that instincts other like deal a great looks instinct retribution the important, reject as bases for behavior. status of slaves in some of the colonies at the time. The equality extended to white to the men, and status slaves in of at the time. The the colonies of some equality extended and political well as historical factors. as time, the of product naturalness this sentiment was of a T one another, free-ride, and engage in acts of vigilantism. These behaviors satisfy an an satisfy behaviors These vigilantism. of acts in engage and free-ride, another, one Society punishes these the collective. of the good above first, put oneself instinct to designed are codes Criminal death. even and incarceration, and fines with behaviors these values Society peace efficiently. promote create parity, good, and to maximize cussion of the causes of criminal activity is well beyond the scope of this Article. Article. this of scope the beyond well is activity criminal of causes of the cussion housing, care, health in education, inequities systematic are there to say, it Suffice econ treatment, health mental and drug argu- The very a crime. of be convicted will an individual that likelihood the affect must punishment that approach—namely a retributivist bolster to used often ment buy-in— public to encourage society of members the of in the eyes be legitimate dis- pain inflicts systematically that model just-deserts a against cut to seem would society. of segment disadvantaged on a particularly proportionately Punish to Reason Poor a a Drive is of B. Satisfaction emotional response to a stimulus in the environment, and the emotional response is is response emotional the and environment, in the to a stimulus response emotional include satisfying a community’s blood deterring a community lust and from “tak[ing] the law evident, that all menequal” created are is a pr 2020] RETRIBUTION RETRIBUTION 2020] 1405 into fits that retaliation of a form as prison characterize scholars Some punishment. for desire collective a community’s that validating arguing the utilitarian scheme, norms. for a community’s respect happinessand creates increases revenge Wilson_EIC_Proof_Complete (Do Not Delete) 1/18/2021 5:24 PM intuitions are somehow universally“correct” and worthwhile. Specifically, moral intui- our how around theory and research by undermined intuitionism been has by fac- to contamination subject are they that shown been has it and operate, tions as distortive. long viewed framing, tors, such as context grounds and heavily sanctioned through our criminal justice system. Humans are are Humans system. justice our criminal and through sanctioned heavily grounds against acts violence of commit litter, squander, steal, to cheat, driven sometimes ral” instincts suggests that what we imagine to be a kind of “natural law” “natural of a kind be to imagine we what that suggests instincts ral” into their own hands.” C Y 42938-lcb_24-4 Sheet No. 140 Side A 02/02/2021 10:18:46 A 02/02/2021 140 Side Sheet No. 42938-lcb_24-4 42938-lcb_24-4 Sheet No. 140 Side B 02/02/2021 10:18:46

, M K 363 C Y ETTIT Henry P

HILIP REEDOM AND P F 5–6 (2012). An An 5–6 (2012). See See

HEORY OF . 15, 32−33 (1993). (1993). 32−33 . 15, EMOCRACY T

EV D A

behavior can serve a signal serve a signal can behavior R :

. any Carlsmith categorized some of of some categorized Carlsmith SR approach to punishment. ODEL OF OF ODEL . 297, 306 (1993). 306 . 297, M , 27 , 27 I URIS k this may be so. A careful look at some some at look A careful be so. may this k EPUBLICANISM , R utilitarian . J. J . J. M HEORY AND AND HEORY ETTIT T P , 38 , 38 A note 36, at 203. HILIP HILIP P supra Justifying Retributivism Justifying note 71, at 288−90, 293. 293. 288−90, at 71, note EPUBLICAN EPUBLICAN However, the frequency of of the frequency However, R