LSA Retro-Recap Day 1: Two Papers on Punishment Theory and Practice
I saw a lot of interesting presentations and met many interesting folks on Day 1. I note a spirited (and sparsely attended) panel on Corey Brettschneider’s When the State Speaks, What Should it Say? that, for some inexplicable reason, was held 8:15 am.
Here are two projects to keep an eye on. Both have extremely high VOSFOTWOAS.
Kenworthey Bilz, Criminal Punishment and Social Standing
Bilz’s paper describes some experimental findings that have big implications for punishment theory. Although she doesn’t put things this way, her work here can be seen as defending the descriptive adequacy of expressivist theories (like Jean Hampton’s) against pure versions of other theories (like consequentialism and retributivism).
Bilz identifies two hypotheses that are consistent with expressivism. The degradation thesis predicts that crime insults the victim, thereby lowering her social standing. The restoration thesis predicts that punishing the wrongdoer takes the victim’s degradation seriously, thus restoring her social standing. Other theories of punishment might be able to appreciate one or the other of these theses, but (presumably) none can capture both.
In her presentation, Bilz described the results from one particularly ingenious experiment. Participants were shown edited versions of The Accused. Those in the punishment version were shown a version of the movie in which the rapists were successfully punished, while those in the no punishment version were shown a version in which the rapists pled to a lesser offense (and so were not punished). Participants in the punishment condition judged the victim to be more admired, valued, and respected than those in the no-punishment version. In other words, successful criminal punishment was associated with judgment that the victim’s social standing was elevated.
Bilz’s paper includes two other studies, one of which tests how the identification of the punisher matters for the efficacy of punishment. I won’t describe the details of this experiment further since the paper is still in draft, but I think the findings from this last experiment are potentially the most significant of the three.
This is a tremendous paper. The experiments are all designed cleanly and rigorously, and each has undeniable implications for the most fundamental issues in criminal law theory. Bilz’s is one of the very best examples of the “realist” turn in punishment theory, which will (one hopes) further the awakening of punishment theorist from their dogmatic slumber.
Donald Braman, Up Against the Wall: Democracy and Policing in Urban America
Braman presented preliminary findings from a book project that is still in the formative stages. Therefore, I don’t want to give away too much of the “special sauce” here. I’ll just say that Baman’s presentation included fascinating qualitative data and policy recommendations that are far better developed than the half-baked suggestions that we tack on to appease law review editors. Braman’s work (like the ongoing projects of Vesla Weaver & Amy Lerman and Sharon Dolovich) illuminates the carceral state in a way that’s both sobering and theoretically rigorous.