Assigning Legal Punishment: Individual Differences in Justice Sensitivity and Selective Attention

Selective attention and justice sensitivity (JS), a personality trait reflecting individual differences in perceptions of injustice, have been shown to affect how people assign punishments. In the present study peoples’ decision-making processes were investigated to better understand the inconsistencies in legal punishment decisions, particularly when using retributive versus restorative justice. Subjects participated in three phases of the experiment. First, subjects completed a justice sensitivity scale and then rated the appropriateness of punishment options to handle a criminal scenario. Second, participants’ selective attention was indicated by their recall of pertinent features from three ambiguous criminal scenarios. Finally, participants were primed with either restorative justice or neutral control words, and rated the appropriateness of punishment options to handle a new criminal scenario. Results revealed no significant associations between JS and ratings of punishment options, although patterns suggested negative relationships between observer JS and retributive justice ratings, and victim JS and restorative justice ratings. Results did show a significant effect of JS in predicting the facts remembered, such that as observer JS increased, more restorative justice facts were recalled, and as victim JS increased, fewer restorative justice facts were recalled. No significant effect of the restorative justice prime was observed. These results may contribute to better understanding of criminal justice policy in the United States. JUSTICE SENSITIVITY AND SELECTIVE ATTENTION 3 Assigning Legal Punishment: Individual Differences in Justice Sensitivity and Selective Attention According to the Bureau of Justice Statistics, the United States has the highest rate of incarceration in the world. The rate of detention for countries comparable to the United States is approximately 100 prisoners per 100,000 people, while the U.S. rate is about 500 prisoners per 100,000 people (Carson, 2014). Since 1978, the number of people sentenced to state and federal prisons has increased significantly, representing an “addiction to incarceration” in the United States (Pratt, 2008). The high rates of recidivism, or future reoffending (i.e., more than 67 percent of released prisoners are arrested for a new crime within three years), show incarceration to be an unsustainable solution in the U.S., both economically and socially (Cooper, Durose, & Snyder, 2014; Bergseth & Bouffard, 2007). The statistics are apparent, yet the rush to incarcerate is still prevalent among judges, juries, and the public alike. Additionally, assignment of punishment varies drastically from case to case, and this inconsistency in legal punishment poses problems for the perceived fairness of the U.S. justice system. Pratt (2008) used an evidence-based approach to demonstrate how addiction to incarceration is fueled by American citizens’ misconceptions about crime, punishment, and the effectiveness of imprisonment. These discrepancies are partially rooted in the founding principles of the United States legal system. The criminal justice system is built upon two philosophical viewpoints, which can be traced back to the 18 century. These fundamental theories, Kantian theory and utilitarian theory, are often described as the basis for the U.S. legal system, although they do not co-exist compatibly (Schroeder, Steel, Woodell, & Bembenek, 2003). While they JUSTICE SENSITIVITY AND SELECTIVE ATTENTION 4 both endorse the idea of traditional punishment, they do so with opposing goals. Kant’s (1724-1804) theory (Carlsmith, Darley, & Robinson, 2002) follows a retrospective approach and suggests a “just deserts” justification for the use of punishment, such that an offender deserves a sanction that is proportional to the moral wrongdoing committed. Following this theory, the appropriate punishment is determined by assessing the magnitude of the harm done and the perpetrator’s “internal wickedness” (Carlsmith et al., 2002). Most central to this psychology of punishment is the notion that the punisher does not need to be concerned with future outcomes. This concept contradicts the utilitarian approach, which emphasizes punishment only for the purpose of future benefit, both for the offender and society. Utilitarians, such as Jeremy Bentham (1748-1832) and Stuart Mill (1806-1873), contend that the purpose of punishment is to deter future crime, and that an offender should receive punishment that is sufficient to prevent a repeat offense (Carlsmith et al., 2002). In opposition to Kantian theory, this approach does not focus on the idea of internal wickedness, but instead assumes that a criminal, like other citizens, acts rationally. Bentham stated, “If the apparent magnitude, or rather value of the pain be greater than the apparent magnitude or value of the pleasure or good he expects to be the consequence of the act, he will be absolutely prevented from performing it” (Bentham, 1962, p. 396). This represents the cost-benefit approach, which encourages offenders to consider the situation in a way that will make criminal activity the unattractive option (Carlsmith et al., 2002; Carlsmith, 2008). The development of the psychology of punishment has its foundations in both the Kantian and utilitarian viewpoints. When people are transgressed or observe unfairness, JUSTICE SENSITIVITY AND SELECTIVE ATTENTION 5 human instinct is to reinstate a sense of peace, whether that is by getting even or repairing the harm that was done. Retributive justice, most simply defined as punishment of offenders with the objective of getting even, is closely related to Kant’s “just deserts” theory. Retributive justice is considered to be the traditional approach to punishment, and views crime as an offense against the state. Empirical research has indicated that people generally show an overwhelming preference for retributive justice, as the idea of “an eye for an eye” has defined many peoples’ perceptions of justice from a young age (Bergseth & Bouffard, 2007; Strelan, Feather, & McKee, 2008). However, Carlsmith et al. (2002) demonstrated that people often show inconsistencies in their motives and behaviors when assigning appropriate punishment. When they had subjects read cases about a variety of criminal activities and choose the appropriate punishment relative to the offense, a majority of people chose punishments that were highly sensitive to retributive factors (aligned with Kantian theory), rather than deterrence factors (utilitarian theory). However, when subjects were asked to endorse qualities of punishment that were either associated with deterrence or retribution (i.e., prevent future harm versus appease society’s sense of moral outrage), subjects most often endorsed deterrence qualities (Carlsmith et al., 2002). This contradiction between participants’ beliefs and actions suggests that people may support utilitarian policies in the abstract, but then rely on their intuitive theories of retributive justice when pressured to make a legal decision (Carlsmith, 2008). In the late 1900s, those involved in legal policy work began to realize the discrepancy between peoples’ beliefs and actions, and the futile effects of traditionally punishing all types of offenders. It was recognized that victims were ill served by the JUSTICE SENSITIVITY AND SELECTIVE ATTENTION 6 current processes of punishment, as offenders often did not take responsibility or understand the effects of their actions on others when they were punished. This led to the development of a new and innovative response to crime called restorative justice, which moved away from traditional punishment. While retributive justice focuses on the crime against the state, restorative justice views wrongdoings as actions against victims and communities (Cormier, 2002). The central feature of restorative justice is to repair the harm associated with the crime and to reduce the likelihood of future offenses. The ideal form of restorative justice processes involves a safe and respectful encounter between the parties (i.e., offender, victim, and community), in which they discuss the crime, its effects, and reach an agreement regarding ways of repairing the harm (Gal & Moyal, 2011). Restorative justice approaches have gained popularity in the United States and elsewhere since the 1970s, and are used in a variety of settings, most commonly in the criminal justice system and in public schools. Punishment outcomes for an offender are decided upon using community-based sanctions, non-adversarial and informal processes, victim-offender mediation, family group conferences, circle sentencing, and decisionmaking by consensus (Bazemore & Umbreit, 2001). These processes emphasize the active role of the victim in promoting offender accountability, with the objective of meeting the needs of the victim. Often surprising to those unfamiliar with restorative justice practices, the final sentencing decision using the restorative approach can be the same as when using a retributive approach; however, the process used to reach the decision differs (Strelan et al., 2008). While retributive justice utilizes only the court, judge, and jury system to come to a conclusion with minimal input from the offender or victim involved, restorative justice JUSTICE SENSITIVITY AND SELECTIVE ATTENTION 7 is conducted very differently (Bergseth & Bouffard, 2007). Restorative justice stresses the importance of process in reaching a punishment decision, as people judge the legitimacy of laws and the legal system based upon the perceived fairness of the manner in which police and courts exercise their authority. People care more about how they are treated in the decision-making process than they do about the outcome (Thibaut & Walker, 1975; Tyler, 1988). This fairness perception is formulated based upon the following four factors: the degree to which the accused has a voice and can