Putting Desert in Its Place

By Slobogin, Christopher; Brinkley-Rubinstein, Lauren | Stanford Law Review, January 2013 | Go to article overview

Putting Desert in Its Place


Slobogin, Christopher, Brinkley-Rubinstein, Lauren, Stanford Law Review


3. Study 5: How long does dissatisfaction with the law last?

Methodology. Our next study raises a more fundamental concern about the compliance hypothesis to the extent that it suggests that noncompliance attitudes resulting from the failure of the criminal law to follow community views is more than fleeting. This study featured three samples from law school classes at Vanderbilt University Law School and the materials that Nadler used in her Flouting the Law studies. (124) Seventy-four students read her stories depicting legislation that unjustly deprived individuals of property, income, or privacy (the harsh treatment condition). A second group of seventy-two students read her story describing an individual who was not prosecuted for an act most would consider blameworthy (the lenient treatment condition). Finally, a third group of forty-seven students (the control group) did not read either type of story.

These three groups were then given Nadler's Likelihood of Criminal Behavior Questionnaire. However, rather than administer that questionnaire to everyone immediately after reading the stories, as Nadler did, we delayed giving the questionnaire to approximately half of all three groups (thirty-five who read the harsh-treatment stories, thirty-five who read the lenient-treatment story, and twenty-two who did not read the stories). The delay ranged from seven to ten days after the first two groups read the stories. Our hypothesis was that any umbrage about unfair government practices dissipates quickly.

Results. As indicated in Table 4, this hypothesis was sustained. Compared to the control group that did not read any stories, and consistent with Nadler's findings, the two groups that received the Likelihood of Criminal Behavior Scale immediately after reading the stories registered slight upticks (both statistically significant) in noncompliance scores. (125) But we found virtually identical noncompliance rates between the control group and the two halves of the experimental groups that completed the scale seven to ten days after reading the stories. These findings suggest that dissatisfaction with unjust legal rules and dispositions either does not last very long or does not have a long-lasting effect on willingness to flout the law.

Of course, Robinson's compliance hypothesis, stated fairly, is that reduced compliance with the law is a result of repeated or constant divergence between the criminal law and societal views, rather than the product of one-time expo sure to one or more stories of injustice. (126) Further research will need to explore this possibility. As one of us has noted elsewhere, however, the fact that the criminal law provisions in many states consistently depart from widely held views about desert does not appear to be associated with greater noncompliance in those jurisdictions, "either because members of the public are not aware of the divergence ..., do not care about it ..., or ... are more prone to obey than disobey the law even when they are disgruntled by it." (127)

C. Hypothesis III: Crime Control

Robinson not only argues that following desert can lead to more compliance and cooperation, but also that these positive effects could be stronger than those produced by a regime that focuses more directly on increasing compliance with the law through incapacitation, rehabilitation, and general deterrence. As noted earlier, he has stated that "strong arguments suggest greater utility in a distribution based on shared intuitions of justice than in a distribution based upon optimizing deterrence, rehabilitation, or incapacitation." (128) However, to date no research supports this view, and the research reported in Studies 3, 4A, and 4B suggests that a mixture of utilitarian and desert goals may be no worse and perhaps even better at promoting compliance and cooperation, at least as measured by Robinson's Moral Credibility Scale and Nadler's Likelihood of Criminal Behavior Scale. …

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