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

摘要: The concept of blameworthiness plays a central role in criminal law. Deontologists and utilitarians alike agree that the sanction should rarely, if ever, apply to an actor who caused harm without some subjective awareness wrongdoing. Research social psychology, however, suggests human beings are predisposed overstate personal, versus situational, factors explaining negative outcomes. It would seem follow officials (legislators, judges, jurors) likely personal responsibility individuals. This tendency has both positive normative significance. Descriptively, it may help explain why many contexts, such as felony-murder doctrine prevailing (narrow) understandings defenses based on insanity, intoxication, necessity, present punishes absent culpability. also converse doctrinal anomalies, provocation, duress, "abuse excuse," which exculpate blameworthy actors. In these instances defense invites law blame another being, rather than impersonal situational factors. Normatively, attribute outcomes persons situations systemic overblame. risk poses significant challenge most popular theories punishment, but is especially strong point against mandatory forms retributivism. As applied by observers overblame, retributivism likey inflict punishment theory itself forbids. At least since M'Naghten case 1840s,1 Anglo-American concerned closely, famously, contentiously with psychology accused.2 Another body scholarship addresses juries,3 other valuable research approached rules evidence from perspective cognitive psychology.4 There has, yet be general investigation what cognition might teach us about law's pervasive concern blameworthiness.5 Article undertakes investigation. brings bear decision-making processes public charged administration justice. psychological decision makers, like beings, overestimate causal significance choice, correspondingly underestimate behavior others.6 My thesis this observer's conduct its consequences personality, situation, important disturbing implications for practice I. INTRODUCTION: OVERVIEW, QUALIFICATIONS, AND ROADMAP A. Overview idea culpability or We have high authority [t]he contention injury can amount crime only when inflicted intention no provincial transient notion. universal persistent mature systems belief freedom will consequent ability duty normal individual choose between good evil.7 could crime, said Blackstone, "vicious will."8 Despite exceptions, strict liability offenses, principle distinctive feature remains fundamental our legal culture. Yet features hard reconcile For example, failed attempt typically punished more leniently successful one, even though those engaging attempts less culpable (or dangerous) successful.9 felony murder departs opposite direction imposing account unintended killings, absence recklessness. …