Putting desert in its place.

Author:Slobogin, Christopher
Position::Empirical desert theory - II. The Research B. Hypothesis II: Compliance 3. Study 5: How Long Does Dissatisfaction with the Law Last? through Conclusion, with footnotes and appendices, p. 108-135
 
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  1. 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)

    1. 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.

    More importantly, neither the research conducted by Robinson and Nadler nor the research reported up to this point in this Article gets at the core question raised by empirical desert theory: will a regime based on desert be better at crime control than a regime more directly attuned to prevention? Assuming correctional programs have any efficacy at reducing crime, the answer to this question is unlikely to be yes.

    As an illustration of this point, consider the robust research concluding that Multi-Systemic Therapy (MST), a community-based treatment consisting of four to six months of intense intervention and subsequent monitoring, is significantly more effective at reducing repeat violence among juveniles than prison or other programs of longer duration. (129) If the sole goal of the criminal justice system were desert, juveniles who commit violent crime would presumably receive some incarceration, or at least some type of supervision, of far more than a half-year duration; indeed, researchers have found that people believe adolescents who commit violent acts deserve a serious penalty. (130) But the research on MST noted above indicates that the latter disposition is unlikely to be as good as MST at reducing crime among the affected juveniles. Nor is a prolonged prison term likely to be better at minimizing crime by others, unless normally law-abiding people become so upset by the community-based treatment that they take the law into their own hands, or unless the fact that no prison is involved seriously undercuts general deterrence. The first development is improbable. (131) The second development is a greater possibility but still unlikely, for reasons Robinson himself has helped delineate. (132)

    Conversely, punishment based on empirical desert may often result in dispositions that ignore the potential for recidivism reduction and even aggravate it. Consider some of the data reported in The Disutility of Injustice. Robinson and his coauthors found that, while the punishments imposed by their subjects were on the whole much lower than the punishments imposed in the actual cases (133) that were used as prompts, they were still "quite punitive. subjects given scenarios involving theft of a microwave, an assault requiring two stitches, and a similar assault during an attempted theft (scenarios also used both by Robinson and Kurzban and by us in our first two studies) (134) assigned, on average, sentences of 2.3 years, 5 years, and 9.1 years, respectively. (135) These subjects also assigned a 17.7-year sentence to an accomplice to a felony murder, a 19.2-year sentence to a juvenile who accidentally shot a school teacher, and a 26.3-year sentence to a mentally ill mother who drowned her children, believing their deaths would save them from going to hell. (136) Even setting aside the probable criminogenic impact of incarceration, (137) confining such people for these extensive periods of time is unlikely to be as effective at reducing crime as more traditional utilitarian attempts at doing so. (138)

    What examples like this suggest is that, from a strictly utilitarian perspective, empirical desert theory may have it backward. Rather than using desert as the linchpin of punishment and hoping that crime prevention will thereby occur, it would make more sense to prefer dispositions like MST that aim directly at preventing crime, unless they are so antithetical to desert that vigilantism or other negative effects will result. The final studies we conducted indirectly tested this proposition. More specifically, they sought to test the extent to which departing from desert is acceptable to laypeople when they are given utilitarian reasons for doing so.

  2. Study 6: To what extent are assessments of desert affected by preventive considerations?

    Methodology. In this study we gave the same 530 subjects involved in Studies 1 and 2 four scenarios depicting different offenders, all with criminal records. (139) As described in more detail in Appendix C, the four scenarios involved: an adult who has committed three separate crimes (grand theft auto, burglary, and theft of golf clubs), an adult who has just been convicted of his third drunk driving offense, a juvenile who committed three progressively more serious assaults, and an adult drug addict who committed three thefts, the last of which involved a minor assault. The control group of 264 subjects was given a description of the personal and offense history of each of these offenders, while the experimental group of 266 subjects was given, in addition, a description of innovative treatment programs like MST that were said to be effective at reducing recidivism. Specifically, the experimental group was told that, once sentenced, the adult theft recidivist would be required to participate in a one-year rehabilitative program shown to reduce offending by thieves, (140) the drunk driver would be subject to a six-month substance abuse treatment program that eliminates alcohol cravings, (141) the juvenile recidivist would be involved in a six-month MST program, (142) and the drug addict would undergo a one-year "drug court" program involving treatment and close supervision in the community. (143)

    We asked participants in both groups to carry out two tasks. First, they were to assign punishments on the same thirty-point scale that we used in Study 2. Second, they were to indicate how much of the punishment they assigned could occur in the community. Our hypothesis was that, compared to the control group, the experimental group would be willing to reduce both the length of punishment and the amount of dispositional time spent in prison.

    Results. Consistent with this hypothesis, the subjects given the treatment information were more likely to prescribe lower sentences in each of the four scenarios, as well as somewhat more likely to permit community dispositions in each. As displayed in Table 5, the sentence lengths imposed by the experimental group were 26% lower (for the...

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