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Library of Congress Cataloging-in-Publication Data
Names: Prooijen, Jan-Willem van, 1975– author.
Title: The Moral Punishment Instinct / Jan-Willem van Prooijen. Description: New York : Oxford University Press, 2018. | Series: Perspectives on justice and morality | Includes bibliographical references and index.
Identifiers: LCCN 2017029613 | ISBN 9780190609979 (hardback)
Subjects: LCSH: Punishment (Psychology) | Criminology—Psychological aspects. | BISAC: PSYCHOLOGY / Social Psychology. | SOCIAL SCIENCE / Criminology. | PHILOSOPHY / Ethics & Moral Philosophy.
Classification: LCC BF319.5.P8 P76 2018 | DDC 303.3/6—dc23 LC record available at https://lccn.loc.gov/2017029613
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Printed by Sheridan Books, Inc., United States of America
PREFACE vii
1. Introduction 1
2. Motives for Punishment 31
3. Reason or Intuition? 69
4. Origins of the Moral Punishment Instinct 95
5. Punishment and Cooperation 125
6. When Punishment Backfires 151
7. Black Sheep versus In-Group Favoritism 175
8. Punishing Dangerous Outsiders 201
9. Revenge, Gossip, and Restorative Justice 225
10. Conclusions and Implications 247
NOTES 263 REFERENCES 271 INDEX 285
It is hard to imagine the world without punishment. Judges send criminals to prison for breaking the law. Cyclists are expelled from competitions for using performance-enhancing drugs. Managers deny employees a muchwanted promotion for poor performance. Teachers discipline their students for not doing their homework. Spouses give each other the silent treatment for being inconsiderate. And parents send their children to bed early for breaking the rules. It is fair to say that we all have punished, and have been punished, on multiple occasions in our lives. Furthermore, punishment strongly influences what people think, feel, and do. What are the common features of all these different examples of punishment? Where does the strong drive to punish offenders originate from? How effective is punishment in changing the behavior of (potential) offenders? More generally, why do people punish?
In modern societies, punishment often takes place via formal institutions such as courts of law, or through leaders who have some sort of legitimate punitive capacity. Throughout the ages, communities have developed complex punishment systems to reduce rule-breaking and discourage selfish behavior in large states. But punishment is not unique to our modern age. It is easy to find examples of punishment in the most ancient of texts, including the holy scriptures of all the world’s major religions, as well as the writings of ancient Greek and Roman historians and philosophers. Furthermore, punishment occurs quite frequently in tribes that still live like hunter-gatherers, much like ancestral humans used to
live for millennia. In such tribes, punishment is effectively enforced by a set of well-established norms that stipulate whether or not offenders will be excluded, subject to disciplinary sanction, or target of public ridicule. Punishment seems to be a basic aspect of the human condition.
One core feature of punishment is that it is strongly rooted in feelings of justice. People punish when they believe that an offender conducted actions that are illegitimate or unfair, and offenders therefore often seem deserving of punishment. This relationship with a concern for justice suggests that punishment is inextricably linked to human morality. Nevertheless, one cannot find a satisfactory answer to the question why punishment is so pervasive among humans in the available social science books that broadly focus on human morality. There is something unique about punishment that warrants a more specific discussion. Punishment is not exclusive to humans: In fact, scientists have observed punishmentlike behaviors in a range of nonhuman animals, including eusocial insect species and fish—animals for which one can legitimately doubt the extent to which they possess any sense of morality. This raises questions not only as to how the human punishment instinct evolved, but also why human beings experience punishment as a moral issue.
The main proposition that I argue for in the book is that moral punishment is a universal human instinct: a hard-wired tendency to aggress against those that violate the norms of the group. People evolved such a moral punishment instinct due to its power to control behavior by limiting selfishness and free-riding. Ancestral humans banded together in small groups of hunter-gatherers as adaptive strategy in a challenging natural environment, and punishment provided the incentive that was necessary to protect one’s interests and stimulate the mutual cooperation that the members of these groups needed to survive. In order to examine this idea, I draw from the rather rich social science literature on punishment. The question why people punish is a popular topic of investigation in a large range of disciplines, including (but not limited to) social, organizational, and educational psychology; criminology; behavioral economics; cultural anthropology; and evolutionary biology. My aim in this book was to integrate all these sources of evidence to examine the question if, and why, people have a moral punishment instinct.
Writing a book is a challenging task that rarely, if ever, occurs in isolation. First and foremost, I would like to thank Abby Gross, who embarked with me on this project, as well as various of her colleagues at Oxford University Press. Also thanks to Carolyn Hafer, the International Society for Justice Research (ISJR) book series editor of Perspectives on Justice and Morality, for her help. Furthermore, I thank Mario Gollwitzer and one anonymous reviewer for the excellent, extensive, and extremely helpful comments on a previous draft of the book. Finally, thanks to Paul van Lange for his feedback on the original book proposal.
I strongly appreciate my professional relationships throughout the years with colleagues and (former) students. Many of them have directly or indirectly contributed to some of the ideas discussed in this book, through collaborative projects, and regular discussions on topics related to punishment, morality, or evolutionary psychology. These scholars include Mark van Vugt, Daniel Balliet, Josh Tybur, Reinout de Vries, Francesca Righetti, Flore Bridoux, Kees van den Bos, André Krouwel, Andrea Pereira, Jean-Louis van Gelder, Iris van Sintemaartensdijk, Peter Strelan, Jennifer Coffeng, Marjolijn Vermeer, Emiel Kerpershoek, Marcello Gallucci, Gaby Toeset, Jerome Lam, Marco van Bommel, Nils Kobis, Niels van Doesum, Meta Aurelia, Xiaoyue Tan, Mengchen Dong, Joris Beijers, Catrien Bijleveld, Henk Elffers, and Tomas Ståhl. Also, I thank the ISJR community for providing a professional forum for the scientific study of social justice.
Finally, I thank my wife, Claudia, who encouraged me to write this book and supported me throughout the process. I feel privileged to have you in my life!
Jan-Willem van Prooijen Amsterdam, May 2017
The Moral Punishment Instinct
On May 6, 2013, Charles Ramsey was headed home to his house on Seymour Avenue, in Cleveland, Ohio. As he was quietly eating a Big Mac, he suddenly heard a strange noise coming from inside the house of his next-door neighbor, Ariel Castro. The noise turned out to be a woman screaming for help. Outside was a man, named Angel Cordero, already trying to figure out what was going on—but Cordero did not speak English, and Ramsey started to talk to the woman. Much to his surprise, Ramsey discovered that the woman behind the locked front door was Amanda Berry: a young woman, who had lived just a few blocks away before she had gone missing 10 years ago. Berry explained that Castro had held her hostage for all those years. Cordero and Ramsey did not hesitate, and together they kicked a hole into the front door. Berry and her six-year-old daughter—who had been conceived and born during Berry’s captivity—crawled out, and together with Cordero and Ramsey, she called the police. Ariel Castro was arrested shortly afterward. This rescue marked
the end point of the suffering of not only Amanda Berry, but also of two other young women who were trapped inside the house, Michelle Knight and Gina DeJesus.
To many people living in the neighborhood, the discovery of the three missing women at Castro’s house was hard to imagine at first. Castro generally was a well-liked person. He never caused any trouble; he had a normal job, and mostly kept to himself. In retrospect, there were a few “odd” features about Castro: all of his windows were boarded with plastic, and there were no air-conditioning units attached to his house. Moreover, although Castro did visit the occasional neighborhood barbecue, he rarely had guests inside or outside of his house. But all of this was insufficient evidence for anyone to suspect what was going on inside.
Once out of sight from his neighbors, Castro turned into a true monster towards Berry, Knight, and DeJesus. After their abduction, these women were held in captivity—sometimes they were chained to the wall in a darkened room for long periods of time. They were regularly beaten, abused, starved, tortured, and raped; essentially, Castro kept these women as animals and subjected them to sexual slavery. They received one meal a day, and were allowed to shower no more than twice a week. Repeatedly, Castro threatened to kill them. Through all the raping, Berry got pregnant, and gave birth to a baby daughter (upon their discovery, DNA evidence indeed proved that Castro was the biological father of her child). Knight got pregnant, too, at least five times, but Castro enforced a miscarriage each pregnancy through beatings and starvations. It truly was the “house of horrors,” and it is hard to imagine what these women had to endure for ten long years.
In the court trial that followed, it was a realistic option for the prosecution to pursue the death penalty. One of the charges on Castro was aggravated murder, given that he forced several miscarriages upon Knight—and in the state of Ohio, this might be punishable by death. If the prosecution would pursue this, however, it would mean that all three women’s nightmares would have to be extended by having to testify in public, something that both the prosecution and the defense attorneys were keen on avoiding. The prosecution and the defense came to a plea agreement: Castro
would plead guilty on most charges, and the prosecution would not pursue the death penalty. Now that the death penalty was no longer an option, it seemed pretty clear what would follow next: Castro would spend the rest of his life in prison. No sane judge would ever grant a parole opportunity to an offender as dangerous as Castro. Still, the verdict that followed on August 1, 2013, came as a surprise.
Castro was sentenced to life imprisonment without parole opportunity, a fine of $100,000, plus an additional 1,000 years of imprisonment.
An additional 1,000 years in prison, on top of a life sentence? What was the judge thinking—was he worried that Castro might get exceptionally old? Did he attribute some superhuman quality to Castro that stops him from aging? Or perhaps there was some practical legal reason behind this—maybe the judge was trying to avoid some legal loophole that would enable Castro to go on parole anyway after a few years. But if this was the case, then why 1,000 years, and not, say, 50 years—Castro was already 52 years old, surely he did not have more than a maximum of 30 to 40 years left at that point. Or, perhaps the judge was just being mechanical: maybe he was, in a bureaucratic fashion, counting the estimated number of felonies, and punishing each one with a proportionate sentence. But would such a cold calculation add up to exactly 1,000 years—and does a life sentence without parole opportunity not already capture the essence of the punishment, which is that Castro had to spend the rest of his life in prison? Was there any logic to be found in the judge’s decision?
In fact, the judge knew exactly what he was doing. He had not gone mad, nor was he building in extra legal safeguards to further ensure that Castro would stay locked in prison for the rest of his life. He was also not applying the law in a rigid, mechanistic fashion. The judge was being symbolic. He sent a message to Castro, to his victims, and to the world, that might read along the following lines: “What this man has done to these women is of such a horrendous, heinous nature, that no prison sentence is good enough. Even if he were to live for another 1,000 years, Castro would still have to be in prison.” The judge literally made sure that Castro understood this by telling him: “You will not be getting out, is that clear?” It was a powerful message indeed, and Castro certainly got it. Castro did not live
to complete his sentence—one month after the verdict, Ariel Castro committed suicide in his prison cell; with still another 999 years, 11 months, and life to go.
The Ariel Castro verdict illuminates an important insight about punishment. For punishment to be satisfactory, it does not need to be rational; it needs to “feel right.” Punishment is closely linked with a deep-rooted, innate concern for justice: An offender has violated commonly embraced norms, values, or rules, and people seek punishment to restore balance in the scales of justice. Punishment puts the offender back into place, and acknowledges the fate of the offender’s victims. In the pursuit of justice, punishment can be considered too severe (the medieval practice of chopping off a hand for stealing a loaf of bread is not considered fair anymore by most people living in modern societies); but punishment can also be considered too lenient. What people want when confronted with offenders like Castro is a punishment that is fair in the sense that it is proportionate to the harm done, and to the evilness of the offender’s actions. In Castro’s case, this meant that only a life sentence did not fully establish justice in the eyes of many people—and the judge found a creative way to sentence Castro more severely than life, even if this would not actually lead to an objectively longer incarceration time. Likewise, it feels unfair and unsatisfactory when an offender manages to escape punishment. This is not always so self-evident as it seems. The former Serbian dictator Slobodan Milosevic died of natural causes in his prison cell, while standing trial for crimes against humanity at the United Nations’ International Criminal Tribunal for the Former Yugoslavia in the Hague, the Netherlands. One might say that dying in a prison cell is a lonely way to go, and very remote from the glorious, heroic ending that a narcissist dictator like Milosevic probably had in mind. Easily, having to die alone in a cold prison cell could be conceived of as a form of punishment. But to many of his victims, the premature death of Milosevic felt like a tremendous disappointment. Milosevic had not received a verdict yet; and even though he had been in prison for five years already, and would certainly be convicted, many people felt that through his death he managed to escape justice. Milosevic and Castro both died in their prison
cell, but there was much less public outrage about the death of Castro than about the death of Milosevic. There was an important, symbolic difference: Castro had been given a formal punishment, and hence, justice had been served—even though he had spent only a few months in prison when he died. Milosevic had been in prison much longer, but he not been given a formal punishment yet; and hence, in the eyes of many people, justice had not been served.
Punishment is thus intimately connected to feelings of justice. In the remainder of this book, I refer to the desire to punish offenders out of a concern for justice as “moral punishment.” The main proposition of this book is that moral punishment is a basic human instinct: a hardwired, innate response tendency towards offenders that violate group rules. This proposition has a lot in common with the frequently voiced insight that people are moral creatures, as people are predisposed to develop a sense of morality.1 But I believe that there are many issues worth highlighting that give punishment a unique status in moral psychology. How does the punitive motivation to make an offender suffer relate to the motivation to control behavior, such as deterring others from offending? What are the evolutionary roots of the moral punishment instinct, and how can we still see these roots today in our modern society? Why is punishment connected to feelings of justice in the first place? And how is the moral punishment instinct related to other basic human behaviors and motivations, such as the human tendency to cooperate, to be altruistic and caring, to trust others, and to their need to belong to valuable social groups? These are questions that the present book seeks to answer.
The idea that moral punishment is an instinct is not new, and not something that I can take credit for. In fact, as early as 1918, George Herbert Mead published an article in the American Journal of Sociology in which he argued for an instinctive basis of the human tendency to punish offenders.2 One set of instincts at the root of punishment is what Mead very generally referred to as “hostile instincts,” which manifest themselves in destructive reactions towards organisms that pose a threat to one’s existence or to one’s kin. These hostile instincts exist next to a range of other instincts, some of them more benevolent (e.g., parental instincts). According to Mead,
human nature consists of an organization of basic instincts that mutually influence each other, and that together can produce complex social acts such as punishment.
Punishment can be a complex social act indeed. It takes years of legal study to fully understand the sophisticated criminal justice system within a country; and even after such careful study, it will be hard to understand all the subtle differences in how offenders are treated by the legal systems of different cultures. Also, outside of the legal realm, people have many social arrangements in place that ensure punishment of rule-breakers, and throughout the centuries, these arrangements have only increased in numbers and in complexity. Only 200 years ago, there were no referees giving red cards to soccer players for foul play, nor were cyclists being expelled from competitions for using performance-enhancing drugs. There is an endless list of possible punishments in our modern age, as well as of formal or informal forms of social organization that utilize punishment to enforce rules. But all of these different manifestations of punishment can be traced back to a very rudimentary instinct that has been with the human species for a very long time: the tendency to aggress against those who violate the rules of the group.
Mead also displayed excellent insight into the reasons why people evolved a punishment instinct, decades before empirical research started proving him right. According to Mead, there is one instinct of particular importance in human nature as it is central to many other instincts, and that is the herding instinct: the human tendency to bond and form social groups. Particularly in ancestral times, when early humans all lived like hunter-gatherers, people needed social groups for survival. For these social groups to be successful, however, cooperation between group members was necessary. Early humans needed to work together towards common goals (such as finding food and shelter), and they needed to give the long-term group interest priority over their immediate self-interest. By reducing the selfish behavior of group members, by establishing rules of conduct, and by enforcing the kind of behaviors that are in the interest of the group, punishment was, and still is, instrumental in establishing cooperation. Mead, for instance, remarked the following (1918, p. 578):
Back of all this type of organization lies the social life within which there must be cooperation of the different individuals, and therefore a continual adjustment of the responses to the changing attitudes of the animals that participate in the corporate acts.
Consistent with this insight, a central proposition of this book is that the moral punishment instinct evolved because it was functional in promoting cooperation in groups. Both the “moral” and the “punishment” aspects are important for that purpose. Morality, for instance, implies that people have a conscience that prompts them to care about the well-being of other group members, and to evaluate through a moral lens the extent to which others are cooperative. Punishment implies that group members expect negative outcomes for themselves if they refuse to cooperate, and they expect such negative outcomes for non-cooperative other group members, too—which installs trust that these others will cooperate. Through various influences on how people relate to each other, moral punishment installs cooperation. Such cooperation was essential in the small groups of hunter-gatherers that all humans descend from. This punishment–cooperation link has implications for modern humans, as punishment still has a substantial influence on behavior, and on people’s willingness to act in the group interest.
It is well known that punishment exerts an influence on behavior. Classic studies on operant conditioning reveal that the strategic use of incentives can increase the likelihood that organisms will learn.3 Behavior can be positively reinforced through rewards, and negatively reinforced through punishment. Behaviors that are followed by rewards are further encouraged; behaviors that are followed by punishments are discouraged, and replaced with behaviors that are either unpunished, or rewarded. If you give children praise (a reward) for doing their homework, it stimulates them to do their homework more often; if you punish children for not doing their homework, it can also stimulate them to do their homework more often. Both types of incentive can teach children to display the desired behavior of doing their homework. These simple principles of operant conditioning suggest that people can learn or unlearn many sorts
of behavior through reward and punishment. Operant conditioning does not make predictions about the question of whether punishment makes the specific behavior of cooperation more likely, however: theoretically speaking, if a parent wants to teach a child to be immoral, selfish, and noncooperative, this should also be possible through operant conditioning. If punishment increases cooperation, it might mean that groups have a natural tendency to utilize punishment in a non-random fashion, to promote cooperative, group-oriented behaviors at the expense of selfish behaviors. Scientific research has critically examined the influence of punishment on cooperation, and generally found that people tend to be more cooperative, and exert more effort in contributing to the interest of the group, if they are in groups where they can be punished by others.4 Also, research has established under what specific circumstances punishment is and is not effective in establishing cooperation. Punishment does not establish cooperation all the time: in some societies, offenders do not accept their punishment, and retaliate by counter-punishing cooperators—a more detrimental form of punishment that is referred to as “antisocial punishment.”5 Punishment has instinctive roots, but that does not mean that how punishment is applied, and how effective it is, are necessarily the same between groups or cultures. How groups use punishment to maintain order has a major impact on how cooperative members of that group are, but also on the extent to which group members trust one another, and the well-being that group members have. Although these dynamics will be outlined in later chapters, the bottom line is this: groups with “healthy” punishment norms—where the cooperative members punish the uncooperative ones—function better in many ways than groups where there is no punishment, or than groups with “unhealthy” punishment norms where the cooperative members are at substantial risk of being punished by the uncooperative ones.
WHAT IS PUNISHMENT?
It is remarkably difficult to give a unique definition of punishment that fully distinguishes it from related types of behavior, such as revenge or
aggression. The fact that punishment, revenge, and aggression have a lot in common should come as no surprise, as these behaviors all are part of our deeply rooted hostile instincts. I doubt that it is possible to fully separate them, as most acts of punishment carry an element of revenge in them, as well as some aggression. Nevertheless, there are subtle differences between the behaviors that we tend to label as “punishment,” “revenge,” or “aggression,” and it is worthwhile to make these minor differences explicit to come to a definition of punishment. One difference between punishment and revenge is that punishment encompasses a broader set of behaviors and motivations: revenge is a form of punishment, but not all punishment qualifies as revenge. Punishment is often determined, and carried out, by an independent third party such as a judge, teacher, or parent (third-party punishment). Revenge, in contrast, usually is understood as an anger-fueled action that is carried out directly by the victim (this is also referred to as second-party punishment), or by someone close to the victim (e.g., the father of a raped daughter). One might say that a punishing judge exacts revenge on behalf of the community—but looking at how revenge is usually investigated in scientific research, this would be stretching the meaning of the term. Furthermore, revenge is all about the anger-based feeling that one needs to restore justice by “getting even.” This is crucial in punishment as well, but a third party determining punishment often also has other motivations, such as setting an example to deter others from offending, or teaching an offender a valuable lesson. A parent who sends a toddler to bed early for not obeying the house rules is punishing the infant, but usually this has little to do with revenge: the purpose of punishment here is to help the child learn the rules. Relatedly, revenge is often coupled with stronger emotions than third-party punishment, as it seeks to address an injustice that one has personally suffered.6
Like revenge, punishment has a lot in common with aggression. In fact, one might consider punishment as a form of aggression, as punishment almost always involves intentionally harming someone else. Punishment essentially is an aggressive response to a person who has broken group rules. But not all aggression qualifies as punishment. People can be aggressive also towards people who have not broken rules, and for different
motivations, such as greed (e.g., violently robbing someone), establishing dominance, or competition (e.g., riots in soccer stadiums). Central in punishment, at least how it is conceived of in this book, is the notion that it involves aggression because an offender did something that is considered normatively wrong. Castro being locked up in prison qualifies as punishment, because the prison sentence was a direct response to his decision to kidnap and abuse his three victims. Berry, Knight, and DeJesus were also being locked up in the prison that Castro built for them, but that is not punishment as I am defining it here, as these women had done nothing normatively wrong; they were not being punished, they were being victimized. A working definition of punishment, then, is intentionally providing another person with negative or unwanted outcomes, as a motivated response to the perception that this person has violated widely shared norms, values, or rules.
Such a definition purposefully is more extensive than the legal sanctioning of criminals. It also purposefully does not include a victim, as people frequently are punished for victimless offenses (e.g., gambling, prostitution, and drug use are illegal in many countries). Rather, the definition is kept broad to acknowledge that social life is permeated with punishment, and that all of us have punished and have been punished at some point in our lives. Punishment occurs in sport matches, where penalties exist even for the most minor transgressions, to make sure the game is played by the rules. Punishment occurs in schools, where teachers impose sanctions on adolescents for not doing their homework, for playing truant, or for bullying classmates. Punishment occurs on the work floor, as most organizations develop a sanctioning system to deal with employees who do not show up on time, surf the Internet during working hours, or do not attain the production targets of a company. Punishment occurs in the political arena, where politicians are forced to step down from office following improper remarks made in public, or improper behavior done privately that gets exposed. Punishment even occurs in families and close relationships, where romantic partners give one another “the silent treatment” for minor (or not so minor) violations of the terms that the relationship is based on.
One property of punishment is that it can be costly. These costs can be financial, which is quite clearly the case when institutions punish. Most national governments spend a large portion of their yearly budget on the institutions that contribute to punishing offenders, such as prisons, the police, and the courts of law. There can also be costs associated with punishment in more informal settings, such as small groups. Punishing an offender can be costly for the punisher, at least in the short run, in terms of time, energy, and material resources. The cost of punishment can take the form of direct physical risk, as sometimes the punished party retaliates. There may also be social costs to punishment. Punishment of an offender who is well liked by parts of the group can damage the reputation of the punisher, and can lead the group to disintegrate.
By means of illustration, people who very clearly pay social costs to punishment are whistleblowers: they report the misdeeds of fellow group members to authorities, and thereby take a first step towards punishment of these offenders. A typical finding in whistleblowing research is that people believe whistleblowing to be important and necessary, and they value the fact that an offender gets punished as a result of the whistleblower’s action. Despite that, however, people strongly dislike and reject whistleblowers—they regard them as traitors. Whistleblowers pay a social price for reporting offenders, as they are being excluded themselves by the very group that they are trying to help.7 Julius Caesar was spot on when he reportedly remarked, “I love treason but hate a traitor.”
Due to the various possible costs of punishment, the act of punishing oftentimes can be regarded as an altruistic act. Some people—the punishers—stick their neck out and enforce the norms of the group, keep the group functioning properly, and protect the group from the bad intentions of an offender. People who do not break rules but also do not punish can enjoy the benefits of a cooperative group without paying the costs. It has therefore been noted that costly punishment is a “second-order social dilemma.” Social dilemmas pertain to situations where one faces the choice between pursuing one’s self-interest or acting on behalf of the group. A typical example of a social dilemma is paying taxes. It is in your individual self-interest not to pay taxes; but if all citizens decide not to pay
their taxes, then we all will have a problem in the long run. The dilemma, then, is the choice between acting in the short-term self-interest (not paying taxes) versus acting in the long-term collective interest (paying taxes, and thereby contributing to collective goods that we all need). Offenders are punished for choosing selfishly in such dilemmas.
Once an offender is identified, however, a new (hence, second-order) dilemma arises: Who is going to punish the offender, and pay the costs associated with that? Again, not punishing is in your short-term selfinterest if punishment is costly; but, if nobody punishes the offender, the offender gets away with tax fraud, making tax fraud tempting to others as well. Modern societies have partially solved this dilemma by giving punishers a formal role in the form of institutions (e.g., tax authorities, the police, courts of law), and the entire community pays for the costs of these institutions (e.g., people who do pay their taxes). In more informal settings, or small groups, the decision to punish can be individually costly, however, and can constitute a more tangible dilemma for group members.
Given the breadth of situations in which punishment occurs, my interest is not so much in the specifics of how the legal system works, or of all the societal institutions that are in place to enforce rules through punishment. Instead, my interest focuses on the underlying psychology of punishment: What motivates people to punish others, and how does punishment influence behavior? As such, my aim is to gather fundamental insights about punishment as a social phenomenon in a wide range of situations. Nevertheless, the psychology of punishment should also be relevant to how people perceive and respond to legal institutions that make formal decisions about punishment. After all, these institutions were built by humans and were designed to serve human needs. One of the main purposes of a legal system is to do justice; and how willing people are to obey the law depends substantially on how successful they believe that the legal system is in enforcing justice. The legal system, and other formal bodies designed to administer punishment, derive their legitimacy from the extent to which they treat citizens in a procedurally fair manner and deliver punishments that the public considers to be justified and proportionate.8
In that sense, one should appreciate the difficult task that the legal system is facing, as the public is not always that easy to satisfy. In many countries, people believe that the legal system is too lenient; and during elections, political candidates frequently do well in the polls by proclaiming they will be “tough on crime.” There can be various reasons for this discrepancy between the punishments that are desired by the public versus by the legal system. One possibility is that the legal system might not be as lenient as people think it is. In a study that was carried out in the Netherlands by criminologists,9 the researchers gave participants a short, newspaper-style description of various crime cases, and asked them for each case what punishment would be appropriate. They also approached Dutch judges with the crime cases—but the judges received more extensive descriptions, to more closely mimic the information that a judge would actually see in court. These two conditions resemble closely what happens in practice: a judge sees an extensive case description, with statements of victim and perpetrator, forensic experts, defense attorneys and prosecution, and many other sources of information that play a role in sentencing. The public, in contrast, just sees a short, somewhat sensationalized description of the case that was written by a journalist.
As might be expected, the public recommended a much harsher sentence than the group of judges. Of interest, however, was a third condition that the researchers also investigated. They gave another group of participants with no legal expertise the same extensive case descriptions as the judges received. These participants were substantially more lenient than the participants who received the short case description. A lack of information apparently is one factor contributing to the discrepancy in preferred punishment between the public and judges, and this may be part of the explanation why people frequently call for more severe punishment of norm violators. At the same time, these research data also suggest that there is more to it than that: the not–legally trained participants with the extensive case description were still far more punitive than the judges were.
How can the public still differ from judges after receiving exactly the same information? My speculation is that due to their legal training, judges are more likely to ignore their emotions about a case and to just follow
