Testing the Expressive Theory of Punishment
posted by Donald Braman
Kenworthey Bilz, an assistant professor of law at Northwestern, has been busy developing a series of empirical tests of expressive theories of criminal law. In particular, she focuses on Jean Hampton’s concern with status and punishment. I thought I’d preview it here as it promises to be a significant contribution to empirical studies of punishment generally.
Hampton, for those who aren’t already familiar with her work, argued that just as criminal acts express a disregard for victims, punishment could express a regard for the value of victims by condemning offenders. This is, in an important way, a public rather than private conception of punishment. The objective isn’t – or at least isn’t only – to make the offender suffer, but to do so in a way that certifies the relative status of the victim as equal or superior to the offender in the public’s mind. By giving expression to their relative stata in this way, punishment serves an important educational and socially integrative role.
Bilz evaluated this theory through a series of innovative experiments. Indeed, I think it’s safe to say that her work is the first to examine, experimentally, the distinctive effects of punishment and non-punishment on both victims and offenders — and as icing on the cake, she does so in a way that reveals differences in social meaning across context. She hasn’t yet published the findings, so all sorts of caveats apply. But with her permission I’d like to give you a sneak preview of them here. Feel free to send her comments if you want more details.
In one experiment, Bilz evaluates the way individuals recall losses that are the result of accident and intentional criminal acts. Overall, consistent with Hampton’s theory, she finds that people tend to speak in different terms about the two, focusing predominantly on material harms resulting from accidents (saying things like “I lost items I paid for with my money.”) and dignitary harms resulting from crimes (saying things like “I lost my social standing with my friends.”).
In another experiment, she divided participants into two groups. Both groups were asked to rate the change in social standing of offenders and victims following a rape trial; the only difference between the groups was that while in one scenario the offenders were convicted of rape, in the other scenario the offenders pleaded to a lesser offense. The group exposed to the rape conviction scenario significantly increased their rating of the victims social status and decreased their ratings of the offender’s social status. The group exposed to the lesser pleading scenario registered a non significant change in their assessment of the social status of either victim or offender in the opposite direction, indicating that, if it did anything at all, the relatively small punishment further injured the social standing of the victim and bolstered the social standing of the rapists.
And in yet another experiment, Bilz tested the idea that the perceived status of both an individual and a social group can be affected by punishment and non-punishment. In this experiment three groups were told to imagine that they were the victim of a criminal “hit and run” car accident. In one group, after a sincere and thorough search, the offender was not found. In a second group the offender was found and punished. And in a third group, the offender was found but not punished. To test in-group/out-group effects, half the participants in each scenario were told that the trial of the perpetrator took place in a foreign country and in the other half that it occurred in the U.S. As expected, the group that was asked to imagine the trial occurring in the US felt that the outcome (punishment or nonpunishment) reflected significantly on their own individual standing and those asked to imagine the trial occurring in another country felt that the outcome reflected significantly on the standing of their social group (Americans).
I think the findings are fascinating and am especially intrigued by the link between punishment and group status. Bilz’s findings hint at the differential effects that punishment might have where, as is the case in many trials in the United States, offenders are tried and convicted by judges and juries that are, on average, wealthier and whiter than those being tried. I would love to see what the relative effects on victim and community/group status are in those kinds of cases as well.
And it is precisely why I like this work so much: It allows us to move beyond universal conceptions of crime and punishment to more nuanced conceptions of punishment that incorporate variations in social meaning across context and community. I’m curious to hear about other research you might have heard of along these lines.