Fundamental Retribution Error: Criminal Justice and the Social Psychology of Blame

By Dripps, Donald A. | Vanderbilt Law Review, October 2003 | Go to article overview

Fundamental Retribution Error: Criminal Justice and the Social Psychology of Blame


Dripps, Donald A., Vanderbilt Law Review


The concept of blameworthiness plays a central role in criminal law. Deontologists and utilitarians alike agree that the criminal sanction should rarely, if ever, apply to an actor who caused harm without some subjective awareness of wrongdoing. Research in social psychology, however, suggests that human beings are predisposed to overstate the role of personal, versus situational, factors in explaining negative outcomes.

It would seem to follow that officials (legislators, judges, and jurors) are likely to overstate the personal responsibility of individuals. This tendency has both positive and normative significance. Descriptively, it may help to explain why in many contexts, such as the felony-murder doctrine and prevailing (narrow) understandings of defenses based on insanity, intoxication, and necessity, present doctrine punishes absent culpability. It may also help to explain converse doctrinal anomalies, such as provocation, duress, and the "abuse excuse," which exculpate blameworthy actors. In these instances the defense invites the law to blame another human being, rather than impersonal situational factors.

Normatively, the tendency to attribute outcomes to persons rather than situations suggests a systemic tendency to overblame. This risk poses a significant challenge to most popular theories of punishment, but it is an especially strong point against mandatory forms of retributivism. As applied by observers predisposed to overblame, mandatory retributivism is likey to inflict punishment the theory itself forbids.

At least since the M'Naghten case of the 1840s,1 Anglo-American criminal law has concerned itself closely, famously, and contentiously with the psychology of the accused.2 Another significant body of scholarship addresses the psychology of juries,3 and other valuable research has approached some of the rules of criminal evidence from the perspective of social and cognitive psychology.4 There has, however, yet to be a general investigation of what social cognition research might teach us about the criminal law's pervasive concern with blameworthiness.5

This Article undertakes that investigation. It brings research on the psychology of social cognition to bear on the decision-making processes of public officials charged with the administration of criminal justice. The psychological research suggests that these decision makers, like most other human beings, are likely to overestimate the causal significance of personal choice, and to correspondingly underestimate the causal significance of situational factors in the behavior of others.6 My thesis is that this observer's tendency to attribute conduct and its consequences to personality, rather than to situation, has important and disturbing implications for the theory and practice of criminal law.

I. INTRODUCTION: OVERVIEW, QUALIFICATIONS, AND ROADMAP

A. Overview

The idea of culpability or blameworthiness plays a central role in both the theory and practice of criminal justice. We have it on high authority that

[t]he contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.7

There could be no crime, said Blackstone, without a "vicious will."8 Despite some exceptions, such as strict liability offenses, the principle that blameworthiness is a distinctive feature of criminal conduct remains fundamental in our legal culture.

Yet many features of prevailing criminal law are hard to reconcile with this principle of culpability. For example, a failed attempt typically is punished more leniently than a successful one, even though those engaging in failed attempts are no less culpable (or dangerous) than those who are successful.9 The felony murder doctrine departs from the culpability principle in the opposite direction by imposing liability for murder on account of unintended killings, even in the absence of culpable recklessness. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Fundamental Retribution Error: Criminal Justice and the Social Psychology of Blame
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.