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
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. …