The puzzle of delegated revenge

Boston University Law Review

Volumn 87, Issue 5, 2007, Pages 1059-1112

  Bilz, Kenworthey ^a,b  

^a NORTHWESTERN UNIVERSITY   (United States)

^b UNIVERSITY OF CHICAGO   (United States)

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[No Author keywords available]

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EID: 38949088289     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (275)

1. Sean Whaley, Double Murderer Executed, LAS VEGAS REV.-J., Apr. 6, 1999, at IA.
2. Id.
3. Police: Witness Kills Man at Court, BOSTON GLOBE, Apr. 3,1993, at 5.
4. See All Things Considered: Mother of Molested Boy Faces Murder Charges (NPR radio broadcast June 7, 1993), available at LEXIS, News Library.
5. See, e.g., Joe Starita, N.Y. "Vigilante" Sparks Wave of Hero Worship, MIAMI HERALD, Jan. 6, 1985, at lA (discussing the outpouring of support for Bernard Goetz, the "Subway Vigilante," who shot four teenagers inside a crowded New York subway car because he thought they were going to rob him). In addition to being nationally reported, Ellie Nessler's story was eventually made into a television movie,
6. See Scott D. Pierce, 'Judgment Day' Offers No Pat Answers, DESERET NEWS (Salt Lake City, Utah), June 21, 1999, at C6.
7. See, e.g., Benedict Carey, Payback Time: Why Revenge Tastes So Sweet, N.Y. TIMES, July 27, 2004, at F1;
8. see also SIGMUND FREUD, CIVILIZATION AND ITS DISCONTENTS 69-70 (James Strachey ed. & trans., W. W. Norton & Co. 1989) (1961) ("It hopes to prevent the crudest excess of brutal violence by itself assuming the right to use violence against criminals, but the law is not able to lay hold of the more cautious and refined manifestations of human aggressiveness.").
9. Robert Hogan & Nicholas P. Emler, Retributive Justice, in THE JUSTICE MOTIVE IN SOCIAL BEHAVIOR 125, 131-32 (Melvin J. Lerner & Sally C. Lerner eds., 1981).
10. See JEAN PIAGET, THE MORAL JUDGMENT OF THE CHILD 227-32 (Marjorie Gabain trans., The Free Press 1965) (1932).
11. See, e.g., Frans B.M. de Waal, The Chimpanzee's Sense of Social Regularity and Its Relation to the Human Sense of Justice, in THE SENSE OF JUSTICE 241, 241-45 (Roger D. Masters & Margaret Gruter eds., 1992);
12. Toshisada Nishida et al., A Within-Group Gang Attack on a Young Adult Male Chimpanzee: Ostracism of an Ill-Mannered Member?, 36 PRIMATES 207, 209-10 (1995).
13. See John M. Darley et al., Incapacitation and Just Deserts as Motives for Punishment, 24 LAW & HUM. BEHAV. 659, 676 (2000);
14. Phoebe C. Ellsworth & Samuel R. Gross, Hardening of the Attitudes: Americans' Views on the Death Penalty, 50 J. SOC. ISSUES 19, 27-29 (1994) (finding that Americans most often cite retribution as a rationale for supporting the death penalty).
15. See Daniel Kahneman et al., Shared Outrage and Erratic Awards: The Psychology of Punitive Damages, 16 J. RISK & UNCERTAINTY 49, 72-73 (1998) (finding that punitive damage awards vary based on the jury's "outrage" or retributive intent);
16. Sally Engle Merry & Susan S. Silbey, What Do Plaintiffs Want? Reexamining the Concept of Dispute, 9 JUST. SYS. J. 151, 176-77 (1984).
17. See FRITZ HEIDER, THE PSYCHOLOGY OF INTERPERSONAL RELATIONS 265-76 (1958);
18. Ron A. Astor, Children's Moral Reasoning About Family and Peer Violence: The Role of Provocation and Retribution, 65 CHILD DEV. 1054, 1065-66 (1994) (observing that violent children justify their actions as retribution for perceived provocation).
19. See generally John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 ARK. L. REV. 511 (1994) (discussing the split of authority regarding whether private prosecutors are constitutionally permissible and concluding that they are not). Note, though, that this conclusion was not historically true, nor is it the case in every culture today. Id. at 518.
20. See DAVID W. EWING, FREEDOM INSIDE THE ORGANIZATION 15-16 (1977).
21. Some institutions even frown on - and occasionally forbid - gossip and grudges once offenders have been dealt with by the institutional powers-that-be. See Nadya Labi, The Gentle People, LEGAL AFF., Jan.-Feb. 2005, at 24, 26 (describing how the Amish consider it sinful to withhold forgiveness and that "anyone who refers to a past misdeed after the Amish penalty for it has ended can be punished in the same manner as the original sinner").
22. See Lisa Bernstein, Merchant Law in a Merchant Court: Rethinking the Code's Search for Immanent Business Norms, 144 U. PA. L. REV. 1765, 1771-77 (1996) (reviewing the complex set of arbitration rules developed by the National Grain and Feed Association). And, of course, while it acts under the authority of the Securities and Exchange Commission (a federal agency), the Financial Industry Regulatory Authority (formerly the National Association of Securities Dealers) is a private organization that heavily regulates and manages disputes among those who participate in the trading industry. About the Financial Industry Regulatory Authority, http://www.finra.org/AboutFINRA/index.htm (last visited Oct. 5, 2007).
23. See generally John J. Coughlin, A Comparison of the Administrative Law of the Catholic Church and the United States, 34 LOY. L.A. L. REV. 81 (2000).
24. Which, of course, isn't to say that they aren't. See, e.g., Gary S. Becker & George J. Stigler, Law Enforcement, Malfeasance, and Compensation of Enforcers, 3 J. LEGAL STUD. 1, 13-16 (1974);
25. David Friedman, Efficient Institutions for the Private Enforcement of Law, 13 J. LEGAL STUD. 379, 394-96 (1984);
26. David D. Friedman, Law As a Private Good, 10 ECON. & PHIL. 319, 327-28 (1994).
27. See Philip B. Kurland & D.W.M. Waters, Public Prosecutions in England, 1854-79: An Essay in English Legislative History, 1959 DUKE L.J. 493, 499-500.
28. See WILLIAM IAN MILLER, BLOODTAKING AND PEACEMAKING 184-87, 304-07 (1990) (discussing the brutality of blood feuds that occurred in early Icelandic history before the existence of a state).
29. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 510 (1973);
30. cf. Kurland & Waters, supra note 19, at 500.
31. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 324-25 (Peter Lasiett ed., Cambridge Univ. Press 1988) (1690).
32. THOMAS HOBBES, LEVIATHAN 226-27 (C.B. Macpherson ed., Penguin Books 1986) (1651).
33. LUCRETIUS, ON THE NATURE OF THE UNIVERSE 206 (R.E. Latham trans., 1973) ("Mankind, worn out by a life of violence and enfeebled by feuds, was the more ready to submit of its own free will to the bondage of laws and institutions.").
34. Kenworthey Bilz & John M. Darley, What's Wrong with Harmless Theories of Punishment, 79 CHI.-KENT L. REV. 1215, 1233-34 (2004).
35. See C. Hale, Fear of Crime: A Review of the Literature, 4 INT'L REV. VICTIMOLOGY 79, 131 (1996).
36. WESLEY G. SKOGAN, DISORDER AND DECLINE 21 (1990);
37. James Q. Wilson & George L. Kelling, Broken Windows, ATLANTIC MONTHLY, Mar. 1982, at 29.
38. See Wesley G. Skogan, On Attitudes and Behaviors, in REACTIONS TO CRIME 19, 29-35 (Dan A. Lewis ed., 1981).
39. Isaac Ehrlich, Crime, Punishment, and the Market for Offenses, 10 J. ECON. PERSP. 43, 55-65 (1996).
40. See e.g., MATTHEW J. HICKMAN & BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, LOCAL POLICE DEPARTMENTS 2000, at 7 (2003) (stating that the total operating budget for State and local law enforcement agencies during fiscal year 2000 was $65.7 billion).
41. See e.g., KRISTEN A. HUGHES, U.S. DEP'T OF JUSTICE, JUSTICE EXPENDITURE AND EMPLOYMENT IN THE UNITED STATES, 2003, at 1 (2006) ("Expenditures for operating the Nation's justice system increased . . . to over $185 billion in 2003 . . . .").
42. See, e.g., Jacob Nussim & Avraham D. Tabbach, Controlling Avoidance: Ex-Ante Regulation Versus Ex-Post Punishment 2 (Bar-Ilan Univ. Pub. Law and Legal Theory, Working Paper No. 07-2, 2007), available at http://ssrn.com/abstract=962850.
43. See, e.g., JOSEPH E. STIGLITZ, PRINCIPLES OF MACROECONOMICS 181 (1993).
44. Id. at 182.
45. For the value of concealed guns for just this purpose, see JOHN R. LOTT, JR., MORE GUNS, LESS CRIME 5-6 (1998) ("When guns are concealed, criminals are unable to tell whether the victim is armed before striking, which raises the risk to criminals of committing many types of crimes.");
46. Ian Ayres & Steven D. Levitt, Measuring Positive Externalities from Unobservable Victim Precaution: An Empirical Analysis of Lojack, 113 Q.J. ECON. 43, 47 (1998) (finding that the presence of anti-theft tracking devices in some cars leads to a reduction in car thefts, even for cars without the devices).
47. Cf. Ayres & Levitt, supra note 35.
48. Richard A. Posner, Retribution and Related Concepts of Punishment, 9 J. LEGAL STUD. 71, 74 (1980), This is usually a reasonable assumption. In the real world the goods that were taken are only part of (maybe even in a small part) of the costs of a robbery. The victim also may suffer physical harm, psychic damage, lost productivity, etc., none of which are recoverable via retribution under this view of punishment. Punishing the man who broke my nose in a pool hall brawl doesn't speed up my physical healing, so I should get no value out of retribution.
49. Of course, individuals might want to develop a reputation for punishing, in order to deter future victimizations. See DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW 178-86 (1994) (describing reputation as a solution to the lack of incentive to punish in one-shot or otherwise finite interactions). In eighteenth- and nineteenth-century England, where public prosecution was unheard of and private prosecution was costly, thousands of "prosecution associations" arose to overcome the problem of a lack of ex post incentive to punish. Merchants would pay a fee into the association's common fund which would be used to fund the prosecution of any crimes subsequently suffered by any member.
50. David D. Friedman, Making Sense of English Law Enforcement in the Eighteenth Century, 2 U. CM. L. SCH. ROUNDTABLE 475, 485-86 (1995). Nevertheless, to the extent that membership in such groups is at all opaque (or can be faked), it is still not clear why firms joined, since there was always the temptation to simply free ride off of others' membership. Moreover, even for the "prosecution associations" themselves, it is still not clear why they would not always be better off threatening retaliation and then failing to follow through in any given instance, These problems, of course, are routinely solved in the real world - the very existence of these associations is evidence of just that. The point is that the standard stories of economics and game theory have a hard time credibly explaining how. For one possible - but ultimately flawed solution for developing a truly credible reputation for retaliation,
51. see infra Part I.B.2.
52. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 22.2, at 599 (4th ed. 1992).
53. Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1204 (1985).
54. See HUGHES, supra note 31.
55. See, e.g., David A. Anderson, The Aggregate Burden of Crime, 42 J.L. & ECON. 611, 634 (1999) (reporting that during the early 1990s, Americans spent $682 million per year on padlocks and almost $2 billion per year on gates);
56. David A. Sklansky, The Private Police, 46 UCLAL.REV. 1165, 1174-77 (1999).
57. See Tomas J. Philipson & Richard A. Posner, The Economic Epidemiology of Crime, 39 J.L. & ECON. 405, 408 (1996) (suggesting that greater public protection can crowd out private protection).
58. Posner, supra note 37, at 78-79, .
59. see also Robert L. Trivers, The Evolution of Reciprocal Altruism, 46 Q. REV. BIOLOGY 35, 49 (1971). For an argument for a taste for retribution that does not rely on biological evolutionary foundations,
60. see RICHARD E. NISBETT & DOV COHEN, CULTURE OF HONOR: THE PSYCHOLOGY OF VIOLENCE IN THE SOUTH 88-89 (1996) (hypothesizing that "cultures of honor," where individuals are more prone to exact revenge, are a result of sociological factors such as protecting one's reputation for toughness in frontier and herding societies).
61. See ROBERT H. FRANK, PASSIONS WITHIN REASON 66-67 (1988).
62. Id. at 5.
63. See Posner, supra note 37, at 74-75 (emphasizing that not only the victim, but also her family and friends derive satisfaction from punishing the offender). Indeed, it is empirically demonstrable that third parties do seem to take pleasure in punishing offenders and will even incur personal cost to inflict it at no conceivable material benefit to themselves.
64. See, e.g., Dominique J.-F. de Quervain et al., The Neural Basis of Altruistic Punishment, 305 SCIENCE 1254, 1258 (2004);
65. Ernst Fehr & Simon Gächter, Altruistic Punishment in Humans, 415 NATURE 137, 137 (2002).
66. Modern psychologists are more likely to speak in terms of a "justice" motive, usually without unpacking the concept further. See, e.g., John Darley, Just Punishments: Research on Retributional Justice, in THE JUSTICE MOTIVE IN EVERYDAY LIFE 314, 324 (Michael Ross & Dale T. Miller eds., 2002).
67. See, e.g., Tracey L. Meares, Social Organization and Drug Law Enforcement, 35 AM. CRIM. L. REV. 191,206-08 (1998) (finding that tough sentences for drug-related crimes have adverse effects on those associated with the offender).
68. See Posner, supra note 37, at 82. This lack of natural limits is more a problem in theory than in practice which, again, economics has a hard time accounting for.
69. See Gary S. Schwartz et al., The Effects of Post-Transgression Remorse on Perceived Aggression, Attributions of Intent, and Level of Punishment, 17 BRIT. J. SOC. & CLINICAL PSYCHOL. 293, 293 (1978);
70. cf. MILLER, supra note 20, passim (describing how, in Icelandic feuds, retributive harm done in excess of initial harm received was compensated for by property).
71. Francesco Parisi, The Genesis of Liability in Ancient Law, 3 AM. L. & ECON. REV. 82, 87-88 (2001);
72. see also MILLER, supra note 20,passim. Miller, however, does not argue that there is no limit to blood feuding. In fact, the point of his book is to show how a society with literally no government at all (as in Medieval Iceland) can nevertheless manage to maintain order.
73. MILLER, supra note 20, passim;
74. see also William Ian Miller, Clint Eastwood and Equity: Popular Culture's Theory of Revenge, in LAW IN THE DOMAINS OF CULTURE 161, 177 (Austin Sarat & Thomas R. Kearns eds., 1998);
75. William Ian Miller, In Defense of Revenge, in MEDIEVAL CRIME AND SOCIAL CONTROL 70, 79 (Barbara A. Hanawalt & David Wallace eds., 1999).
76. Posner, supra note 37, at 82.
77. See U.S. CONST, amends. IV-VII, XIV.
78. See, e.g., E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE 89 (1988);
79. JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS 118 (1975) (reporting that the adversary system "produces greater satisfaction with the judgment, regardless of the outcome of the case");
80. Tom Tyler et al., Influence of Voice on Satisfaction with Leaders: Exploring the Meaning of Process Control, 48 J. PERSONALITY & SOC. PSYCHOL. 72, 72 (1985);
81. Laurens Walker et al., The Relation Between Procedural and Distributive Justice, 65 VA. L. REV 1401,1415-16 (1979) (concluding that perceived outcome fairness does not affect perceived procedural justice).
82. See, e.g., THIBAUT & WALKER, supra note 54, at 2;
83. Gerda Koper et al., Procedural Fairness and Self-Esteem, 23 EUR. J. SOC PSYCHOL. 313, 323 (1993) (finding procedural injustice lowers self-esteem);
84. Tom R. Tyler & Robert Folger, Distributional and Procedural Aspects of Satisfaction with Citizen-Police Encounters, 1 BASIC & APPLIED SOC. PSYCHOL. 281, 281 (1980);
85. Tom Tyler et al., Understanding Why the Justice of Group Procedures Matters: A Test of the Psychological Dynamics of the Group-Value Model, 70 J. PERSONALITY & SOC. PSYCHOL. 913, 913 (1996) (testing whether fair procedures communicate identity-relevant information).
86. See Kees van den Bos & E. Allan Lind, The Psychology of Own Versus Others ' Treatment: Self-Oriented and Other-Oriented Effects on Perceptions of Procedural Justice, 27 PERSONALITY & SOC PSYCHOL. BULL. 1324, 1331 (2001).
87. See E. Allan Lind et al., The Social Construction of Injustice: Fairness Judgments in Response to Own and Others' Unfair Treatment by Authorities, 75 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 1, 14-15 (1998);
88. van den Bos & Lind, supra note 56, at 1331-33.
89. So, for example, although people tend to derogate victims of misfortune generally, they do so less to the degree they share features, such as political affiliations, with the victim. See, e.g., Frederick D. Miller et al., Predicting Perceptions of Victimization, 6 J. APPLIED SOC. PSYCHOL. 352, 356-57 (1976).
90. See generally Jennifer T. Lupfer, Untitled Manuscript (unpublished manuscript, on file with author) (discussing the extreme and surprisingly recent history of treating criminal offenders as an anthropologically distinct class). This literature arguably lives on today, albeit in disguised form, in discussions of clinical "psychopathy" and "sociopathy." See, e.g., ROBERT D. HARE, WITHOUT CONSCIENCE: THE DISTURBING WORLD OF PSYCHOPATHS AMONG US 6-7 (1993);
91. Linda Mealey, The Sociobiology of Sociopathy: An Integrated Evolutionary Model, 18 BEHAV. & BRAIN SCI. 523, 523, 536 (1995).
92. Kathleen Burge, Geoghan Sentenced to 9-10 Years, BOSTON GLOBE, Feb. 22, 2002, at Al.
93. See Sean P. Murphy, Tests Ordered for Druce in Geoghan Killing: Suspect Condemns Abuse of Children, BOSTON GLOBE, Oct. 4, 2003, at B5.
94. See, e.g., The Early Show (CBS television broadcast Aug. 25, 2003), available at LEXIS, News Library; The NewsHour with Jim Lehrer (PBS television broadcast Aug. 25, 2003), available at LEXIS, News Library.
95. Editorial, The Wrong Penalty, BOSTON GLOBE, Sept. 2,2003, at A12.
96. Murphy, supra note 61.
97. Tom Whitehead, Police May Quiz Huntley Over 'Confessions, ' PRESS ASS'N, Nov. 26, 2004, at Home News. Huntley has since unsuccessfully attempted to commit suicide two more times.
98. See Charlotte Gill, Huntley in Third Suicide Attempt, DAILY MAIL (London), Sept. 29, 2007, § 2, at 7.
99. Brian Masters, He Cannot Be Allowed To Escape Justice, DAILY MAIL (London), June 11, 2003, at 12.
100. But cf. The NewsHour with Jim Lehrer, supra note 62 (quoting plaintiffs' attorney Mitchell Garabedian as saying that most of the plaintiffs felt Geoghan should have served out his time and been given an opportunity to reflect). That such a sentence would be unconstitutional does not diminish the wish, or the point.
101. See Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion) (holding that the death penalty is a "grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment").
102. In a telephone survey, 65% of Americans reported that they favored the death penalty for persons convicted of murder. ABC News, Washington Post Poll, June 22-25, 2006, Public Opinion Online, The Roper Center at the University of Connecticut, accession no. 1658721, available at LEXIS, News Library.
103. Katherine Baicker, The Budgetary Repercussions of Capital Convictions, ADVANCES ECON. ANALYSIS & POL'Y, 2004, vol. 4, issue 1, art, 6, at 1-3, available at http://www.bepress.com.ezproxy.bu.edu/bejeap/advances/vol4/issl/art6 (follow "Download" hyperlink).
104. See Paul Bradley, For Snipers, It May Be Life and Death, RICHMOND TIMES DISPATCH (Virginia), Mar. 8,2004, at B1.
105. See, e.g., Carol Morello & Katherine Shaver, Prosecutor Initiates Sniper Case Charges; Gansler to Seek Death Penalty for Muhammad, WASH. POST, Oct. 27, 2002, at Al;
106. Editorial, Poor Execution of Jurisdiction, CAVALIER DAILY (Virginia), Oct. 29, 2002;
107. CNN Late Edition with Wolf Blitzer (CNN television broadcast Nov. 3, 2002), available at LEXIS, News Library.
108. Josh White & Patricia Davis, N. Va. Looks To Be Next Stop for Sniper Case, WASH. POST, Jan. 25,2004, at C1.
109. See Frank Green & Rex Bowman, Alabama, Maryland Queue Up for Snipers: Each Wants To Bring Its Own Case Against Muhammad, Malvo, RICHMOND TIMES DISPATCH (Virginia), Nov. 21, 2003, at A18;
110. Tom Jackman & Josh White, Prosecution Groundwork Laid for More Sniper Trials, WASH. POST, Dec. 25, 2003, at Bl;
111. White & Davis, supra note 72.
112. See Baicker, supra note 69;
113. Michael L. Radelet & Marian J. Borg, The Changing Nature of Death Penalty Debates, 26 ANN. REV. SOC 43, 50 (2000) (claiming executions are much more expensive than lifetime imprisonment).
114. Matthew Cella & Jon Ward, States Vie for Sniper Suspects, WASH. TIMES, Dec. 4, 2003, at Al;
115. see also Green & Bowman, supra note 73.
116. Michael C. Dorf, Ashcroft and Rehnquist Go on a Shopping Spree: The Problem with Choosing Jurisdictions and Judges Based on Predicted Results in the Sniper and Terrorism Cases, FINDLAW, NOV. 27, 2002, http://writ.news.findlaw.com/dorf/20021127.html;
117. cf. Morello & Shaver, supra note 71.
118. CNNNewsnight Aaron Brown, (CNN television broadcast Oct. 28, 2002), available at LEXIS, News Library.
119. Id. As a more recent example of a similar phenomenon, consider the resentment felt by Kurdish Iraqis when Saddam Hussein was executed for the massacre of 148 Shiites in Dujail, before his trial for the chemical attack on thousands of Kurds in Anfal was even completed. As Christopher Hitchens reported for Slate: Every Kurd I know was eager to see this episode properly aired in court and placed on the record for all time, with its chief perpetrator on hand to be confronted with his deeds. Instead, the said chief perpetrator was snatched from the dock - in the very middle of his trial - and thrown as a morsel to one of the militias.
120. Christopher Hitchens, Lynching the Dictator, SLATE, Jan. 2, 2007, http://www.slate.eom/id/2156776.
121. The public's desires also can't easily be explained by a sort of "reputation" effect; that is, the opportunity to hold the trials in their own jurisdictions to send a powerful - and powerfully expensive - deterrence message to would-be criminals to stay out of their State. People expressed outrage in Montgomery, for example, at the idea that the prosecution might be federal, rather than local, despite the fact that the physical jurisdictions are overlapping. See Morello & Shaver, supra note 71.
122. Tom Jackman, Va. Judge Dismisses Case Against Muhammad, WASH. POST, Oct. 2, 2004, at Al.
123. Brett Barrouquere & Josh Noel, Sniper Suspects Indicted in BR, THE ADVOC (Baton Rouge, La.), Nov. 15,2002, at Al.
124. See, e.g., William Austin, Elaine Walster & Mary Kristin Utne, Equity and the Law: The Effect of a Harmdoer's "Suffering in the Act" on Liking and Assigned Punishment, 9 ADVANCES IN EXPERIMENTAL PSYCHOL, 163, 165-67 (1976).
125. WILLIAM IAN MILLER, HUMILIATION: AND OTHER ESSAYS ON HONOR, SOCIAL DISCOMFORT, AND VIOLENCE 16 (1993).
126. Richard H. Thaler, Mental Accounting Matters, 12 J. BEHAV. DECISION MAKING 183, 184 (1999);
127. see also Chip Heath & Jack B. Soil, Mental Budgeting and Consumer Decisions, 23 J. CONSUMER RES. 40,40 (1996) ("Consumers often set budgets for categories of expenses (e.g. entertainment) and track expenses against their budget.").
128. See generally Richard Thaler, Toward a Positive Theory of Consumer Choice, 1 J. ECON. BEHAV. & ORG. 39 (1980) (arguing that in certain situations, many consumers act in a manner that is inconsistent with normative economic theory).
129. Daniel Kahneman & Amos Tversky, Choices, Values, and Frames, 39 AM. PSYCHOLOGIST 341, 347-48 (1984).
130. Heath & Soll, supra note 84, at 45-49. 87W.
131. Steven J. Kingsbury, Self-Esteem of Victim and the Intent of Third-Party Aggression in the Reduction of Hostile Aggression, 2 MOTIVATION & EMOTION 177, 180-82 (1978).
132. Id. at 181.
133. Id. at 183-84.
134. Id.
135. Telephone Interview with Paul Cummins, San Francisco prosecutor in Ng case (Oct. 13, 2004).
136. Rene Sanchez, Jury Convicts Man of Murdering 11; Victims Were Tortured in Remote Calif. Cabin, WASH. POST, Feb. 25. 1999, at A3.
137. Killer Charles Ng Sentenced to Death. L.A. TIMES, July 1, 1999. at A3 (stating Ng was condemned to die by lethal injection).
138. Sanchez, supra note 93.
139. Telephone Interview with Paul Cummins, supra note 92.
140. Id.
141. In re Paul Steven Cosner. No. PES-01-281341 (CaI. Super. Ct. Mar. 7, 2001), available at http://www.sftc.org/minds_asp/Mainpage.asp? web_server=207.215.212.15& minds_server=ntimagex&category=-P&DocID= 00247193 (strike-through in handwritten original). Charles Ng had an accomplice, Leonard Lake, who, after being arrested, swallowed cyanide pills sewn into his lapel,
142. See Daniel Yi. Jury Convicts Ng on Il Counts of Murder, L. A. TIMES, Feb. 25. 1999, at Al.
143. Bill Wallace, Family of Missing Man Finds Peace in Ruling; Judge Says Serial Murderers Killed S.F. Auto Broker, SAN FRAN. CHRON., Mar. 12,2001, at A20.
144. That is, they desire to belong to well-regarded groups, Henri Tajfel & John C Turner, The Social Identity Theory of lntergroup Behavior, in PSYCHOLOGY OF INTERGROUP RELATIONS 7, 16-17 (Stephen Worchel & William G. Austin eds., 1986), and to be wellregarded members of the groups they value,
145. see Tyler et al., supra note 55. Both of these desires may be grounded in an overarching and general "need to belong," or need to affiliate with other people.
146. See Roy F. Baumeister & Mark R. Leary, The Need to Belong: Desire for Interpersonal Attachments as a Fundamental Human Motivation, 117 PSYCHOL. BULL, 497, 497(1995).
147. E.g., Roy F. Baumeister, Self and Identity: An Introduction, in ADVANCED SOCIAL PSYCHOLOGY 51, 73 (Abraham Tessered., 1995).
148. E.g., Tyler et al., supra note 55, at 926.
149. E.g., Tajfel & Turner, supra note 100,
150. Robert B. Cialdini et al., Basking in Reflected Glory: Three (Football) Field Studies, 34 J. PERSONALITY & SOC PSYCHOL. 366 (1976);
151. see Abraham Tesser, Toward a Self-Evaluation Maintenance Model of Social Behavior, in 21 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 181, 182 (Leonard Berkowitz ed., 1988).
152. See David Dunning & Geoffrey L. Cohen, Egocentric Definitions of Traits and Abilities in Social Judgment, 63 J. PERSONALITY & SOC PSYCHOL. 341, 350 (1992).
153. Mark D. Alicke et al., The Person Who Outperforms Me Is a Genius: Maintaining Perceived Competence in Upward Social Comparison, 73 J. PERSONALITY & SOC PSYCHOL. 781, 781(1997).
154. See, e.g., FAYE J. CROSBY, RELATIVE DEPRIVATION AND WORKING WOMEN 168-69 (1982);
155. Brenda Major & Maria Testa, Social Comparison Processes and Judgments of Entitlement and Satisfaction, 25 J. EXPER. SOC. PSYCHOL. 101, 118 (1989).
156. Indeed, in some circumstances, the needs for consistency, self-understanding, and control will lead people to prefer negative feedback to positive if the former comports better with their own evaluation of themselves. See, e.g., William B. Swann, Jr. et al., Agreeable Fancy or Disagreeable Truth? Reconciling Self-Enhancement and Self-Verification, 57 J. PERSONALITY & SOC. PSYCHOL. 782, 783 (1989);
157. William B. Swann, Jr., Identity Negotiation: Where Two Roads Meet, 53 J. PERSONALITY & SOC. PSYCHOL. 1038, 1039 (1987). When will people with a negative self-evaluation prefer positive, and when negative, feedback? Roughly speaking, Swann and his colleagues have found that when trying to maximize positive feelings people will prefer positive feedback, but when trying to accurately assess their abilities (mat is, when the emphasis is on cognition, not affective responses) people will prefer the feedback that comports with their self-image.
158. See William B. Swann, Jr. et al., The Cognitive-Affective Crossfire: When Self-Consistency Confronts Self-Enhancement, 52 J. PERSONALITY & SOC. PSYCHOL. 881, 886 (1987). Under most circumstances, however, the preference for positive affect will dominate the desire for consistency.
159. See Baumeister, supra note 101, at 72.
160. See Tom R. Tyler & E. Allan Lind, A Relational Model of Authority in Groups, in 25 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 115, 166(Mark Zannaed., 1992).
161. E.g., Heather J. Smith et al., The Self-Relevant Implications of the Group-Value Model: Group Membership, Self-Worth, and Treatment Quality, 34 J. EXPER. SOC. PSYCHOL. 470,472 (1998);
162. Tyler et al., supra note 55, at 913, 923.
163. Jennifer Kenworthey Bilz, The Effect of Crime and Punishment on Social Standing 72-73 (2006) (unpublished Ph.D. dissertation, Princeton University) (on file with Princeton University).
164. See Jean Hampton, An Expressive Theory of Retribution, in RETRIBUTIVISM AND ITS CRITICS 1, 12 (Wesley Cragg ed., 1992).
165. E.g., id.;
166. see, e.g., JOEL FEINBERG, The Expressive Function of Punishment, in DOING AND DESERVING: ESSAYS IN THE THEORY OF RESPONSIBILITY 95, 118 (1970);
167. JEFFRIE G. MURPHY & JEAN HAMPTON, FORGIVENESS & MERCY 2 (1988).
168. E.g., Kevin M. Carlsmith, The Roles of Retribution and Utility in Determining Punishment, 42 J. EXPER. SOC. PSYCHOL. 437, 437 (2006);
169. Kevin M. Carlsmith et al., Why Do We Punish? Deterrence and Just Deserts as Motives for Punishment, 83 J. PERSONALITY & SOC. PSYCHOL, 284, 284 (2002);
170. Darley et al., supra note 10, at 659;
171. Ellsworth & Gross, supra note 10, at 29 (in the context of the death penalty);
172. Robert M. McFatter, Purposes of Punishment: Effects of Utilities of Criminal Sanctions on Perceived Appropriateness, 67 J. APPLIED PSYCHOL. 255, 255 (1982).
173. See generally Robert M. McFatter, Sentencing Strategies and Justice: Effects of Punishment Philosophy on Sentencing Decisions, 36 J. PERSONALITY & Soc. PSYCHOL. 1490 (1978) (discussing the impact that underlying punishment philosophy has on the duration and severity of punishment doled out).
174. Bilz, supra note 111.
175. See, e.g., Jason Sunshine & Tom Tyler, Moral Solidarity, Identification with the Community, and the Importance of Procedural Justice: The Police as Prototypical Representatives of a Group's Moral Values, 66 SOC PSYCHOL. Q. 153, 162 (2003).
176. Cf Tom R. Tyler & E. Allan Lind, Intrinsic Versus Community-Based Justice Models: When Does Group Membership Matter?. 46 J. SOC ISSUES 83, 86-88 (1990) ("[Group-value theory] predicts that group membership and sense of community will be crucial variables injustice-related attitudes and behavior.").
177. This is perhaps another justification for a "jury of his peers." True enough that it is supposed to be peers of the offender, but psychologically, it is certainly important to the victim that they be representatives of her, as well.
178. Bilz, supra note 111, at 60-75.
179. Id. at 70-73.
180. Id.
181. In re Paul Steven Cosner, No. PES-01-281341 (Cal. Super. Ct. Mar. 7, 2001), available at http://www.sftc.org/minds_asp/Mainpage.asp? web_server=207.215.212.15& minds_server=ntimagex&category-P&DocID= 00247193.
182. See, e.g., Jonathan Bridges, Hooding the Jury, 35 U.S.F. L. REV. 651, 653-58 (2001).
183. Id. at 656 ("None of the squad members know which of them is firing the blank, and thus each may be comforted by the possibility that he did not cause the condemned's death.").
184. Michael J. Osofsky & Howard J. Osofsky, The Psychological Experience of Security Officers Who Work with Executions, 65 PSYCHIATRY 358, 363 (2002).
185. James Brooke, Utah Debates Firing Squads in Clash of Past and Present, N.Y. TIMES, Jan. 14,1996, § 1, at 16.
186. To their credit, prisons take extremely seriously the solemn nature of administering the death penalty, and fill the executioners' job with psychologically well-adjusted people; often, interestingly, ones with profound doubts or even opposition to state-sponsored killing. Osofsky & Osofsky, supra note 125, at 359 (citing R.J. LIFTON & G. MITCHELL, WHO OWNS DEATH (2000)).
187. Id. at 362-64.
188. Id. at 367-69.
189. See, e.g., Lauren Frayer, Sunni Mob Ravishes Shrine: Hundreds in Iraq Protest Saddam Hussein's Hanging, GRAND RAPIDS PRESS, Jan. 2,2007, at A3;
190. Sudarsan Raghavan, Final Moments For Saddam, HOUS. CHRON., Dec, 31, 2006, at Al.
191. See Timothy Lenz, Republican Virtue and the American Vigilante, 12 LEGAL STUD. F. 117, 118-19 (1988).
192. See Joseph A. Vandello & Dov Cohen, Patterns of Individualism and Collectivism Across the United States, 77 J. PERSONALITY & SOC. PSYCHOL. 279,289 (1999).
193. See Bilz & Darley, supra note 25, at 1237-38.
194. See Heather Strang, The Crime Victim Movement as a Force in Civil Society, in RESTORATIVE JUSTICE AND CIVIL.
195. See Susan J. Pharr et al., A Quarter-Century of Declining Confidence, J. DEMOCRACY, Apr. 2000, at 5, 10.
196. In Afghanistan and Pakistan, these tribal "courts" operate extensively and in lieu of the formal legal system, For a description, see generally Nafisa Shah, Faislo: The Informal Settlement System and Crimes Against Women in Sindh, in SHAPING WOMEN'S LIVES: LAWS, PRACTICES AND STRATEGIES IN PAKISTAN 227 (Farida Shaheed et al. eds., 1998)
197. and Marie D. Castetter, Note, Taking Law into Their Own Hands: Unofficial and Illegal Sanctions by the Pakistani Tribal Councils, 13 IND. INT'L & COMP. L. REV. 543 (2003).
198. Robert J. Sampson & Dawn Jeglum Bartusch, Legal Cynicism and (Subcultural?) Tolerance of Deviance: The Neighborhood Context of Racial Differences, 32 LAW & SOC'Y REV. 777, 800-01 (1998).
199. Cf. Tracey L. Meares, Charting Race and Class Differences in Attitudes Toward Drug Legalization and Law Enforcement: Lessons for Federal Criminal Law, 1 BUFF. CRIM. L. REV. 137, 163-64 (1997) (claiming that "participation in a neighborhood-based group in support of community policing is likely to lead to law-abiding behavior directly" because it breeds community solidarity and law-abiding norms);
200. Tracey L. Meares & Dan M. Kahan, Law and (Norms of) Order in the Inner City, 32 LAW & SOC'Y REV. 805, 818-19, 827-29 (1998) (arguing that bridging the gap between the church - a stable social institution in many inner city communities - and the police would provide an effective means of law enforcement).
201. Parisi, supra note 51, at 84-85.
202. See, e.g., Vincy Fon & Francesco Parisi, Revenge and Retaliation, in THE LAW AND ECONOMICS OF IRRATIONAL BEHAVIOR 141, 142-44 (Francesco Parisi & Vernon Smith eds., 2005);
203. Posner, supra note 37, at 75-76.
204. See, e.g., Douglas Ivor Brandon et al., Special Project, Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 VAND, L. REV. 845, 850-51 (1984).
205. Parisi, supra note 51, at 86 (emphasis added).
206. Daniel Klerman, Settlement and the Decline of Private Prosecution in Thirteenth-Century England, 19 LAW & HIST. REV. 1, 1-3 (2001).
207. Id. at 5-7. These civil prosecutions existed side-by-side with criminal prosecutions ("presentment") for several centuries. However, their domains were somewhat distinct. Until the fourteenth-century, presentment was used exclusively for homicide and theft, whereas civil prosecutions covered not only many homicides and theft, but also "rape, mayhem, wounding, false imprisonment, assault and battery," Id. at 7 (footnote omitted).
208. Id. at 8.
209. Id. at 43.
210. Id. at 4.
211. Id. at 10.
212. Id. at 11.
213. Id.
214. Id. at 12.
215. Id.
216. Id. at 12 n.36. A traditional, economic view of punishment, of course, would have trouble explaining why 100% of cases did not settle.
217. See, e.g., NISBETT & COHEN, supra note 44, at 81 -91.
218. See Meares & Kahan, supra note 138, at 813.
219. See generally DONALD BRAMAN, DOING TIME ON THE OUTSIDE: INCARCERATION AND FAMILY LIFE IN URBAN AMERICA (2004).
220. See generally TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990) (examining the extent to which normative factors - commitment to the law as a result of morality and perceived legitimacy of the enforcing authority influences compliance with the law independently of deterrence judgments).
221. See, e.g., Hazel v. State, 157 A.2d 922, 925 (Md. 1960).
222. NISBETT & COHEN, supra note 44, passim;
223. see also Dov Cohen & Joe Vandello, Meanings of Violence, 27 J. LEGAL STUD. 567, 568-75 (1998).
224. Cohen & Vandello, supra note 158, at 578 ("[S]tatutory and case law in 20 of 23 northern states adopts the retreat rule, forcing a person to exhaust all possible options of escape before using deadly force,").
225. Id.
226. See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 177-79 (1993).
227. John M. Darley et al., The Ex Ante Function of the Criminal Law, 35 LAW & SOC'Y REV. 165, 168 (2001).
228. See Richard B. Felson, Aggression as Impression Management, 41 Soc. PSYCHOL. 205 (1978);
229. Richard B. Felson. Impression Management and the Escalation of Aggression and Violence, 45 SOC PSYCHOL. Q. 245 (1982).
230. For a cutting analysis of the problem, see generally STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF LAW (1998).
231. Lisa R. Harris & David J. Weiss, Judgments of Consent in Simulated Rape Cases, 10 J. Soc BEHAV. & PERSONALITY 79, 86-87 (1995).
232. Victoria Nourse, Passion's Progress: Modern Law Reform and the Provocation Defense, 106 YALE L.J. 1331, 1341 (1997).
233. See id. at 1370-71 (citing MODEL PENAL CODE § 210.3 cmt., at 62 (1985));
234. see also Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 307 (1996).
235. Brown v. United States, 256 U.S. 335, 343 (1921).
236. See Kahan & Nussbaum, supra note 167, at 273-74.
237. HODDING CARTER, SOUTHERN LEGACY 50 (1950).
238. See, e.g., SCHULHOFER, supra note 164, at 270-73.
239. See John Darley et al., Enacting Justice: The Interplay of Individual and Institutional Perspectives, in THE SAGE HANDBOOK OF SOCIAL PSYCHOLOGY 458, 465-72 (Michael A. Hogg & Joel Cooper eds., 2003).
240. Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 970-72 (1995).
241. Cf. id. at 971.
242. FRIEDMAN, supra note 161, at 177.
243. Id. at 177-78.
244. Dan M. Kahan, Gentle Nudges vs. Hard Shoves: Solving the Sticky Norms Problem, 67 U. CHI. L. REV. 607, 623-24 (2000).
245. See DAVID MATZA, DELINQUENCY AND DRIFT 40-41 (1964);
246. Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 357 (1997).
247. See John J. Dilulio, Jr., The Question of Black Crime, 117 PUB. INT. 3, 7 (1994).
248. For a fairly detailed account of the Youth Aid Panel program, see NINA W. CHERNOFF & BERNARDINE H. WATSON, PUBLIC/PRIVATE VENTURES, AN INVESTIGATION OF PHILADELPHIA'S YOUTH AID PANEL: A COMMUNITY-BASED DIVERSITY PROGRAM FOR FIRST-TIME YOUTHFUL OFFENDERS 1-6 (2000), available at www.ppv.org/ppv/publications/ assets/61 _publication.pdf.
249. John J. DiLulio Jr. & Beth Z. Palubinsky, How Philadelphia Salvages Teen Criminals, CITY J., Summer 1997, at 29, 31, available at www.city-journal.org/html/7_3_how_phila.html.
250. See, e.g., PATRICK GRIFFIN, U.S. DEP'T OF JUSTICE, DEVELOPING AND ADMINISTERING ACCOUNTABILITY-BASED SANCTIONS FOR JUVENILES 4-5 (Sept. 1999), available at http://jabg.nttac.org/docs/sanctions.pdf.
251. The program has been investigated for more traditional markers of success, namely its effects on recidivism. Youths who are diverted into the program fare substantially better than controls in this regard. CHERNOFF & WATSON, supra note 180, at 7-8.
252. Tracey L. Meares, Praying for Community Policing, 90 CAL. L. REV, 1593, 1596 (2002).
253. Id. at 1598.
254. Id. at 1598-99.
255. See Meares, supra note 49, at 225.
256. Id. at 221.
257. Id. at 209.
258. See id. at 210.
259. See id. at 221. Meares describes an alternative strategy of "reverse sting" which focus on arresting suburbanite buyers rather than drug dealers. She suggests that such stings may improve the stability of impoverished areas by moving the burden of law enforcement away from inner cities, disrupting the profitability of the drug trade, and encouraging cooperation between local residents and police. Id.
260. Meares metaphorically calls this a "Quaker" as opposed to a "Puritan" approach. Tracey L. Meares, Norms, Legitimacy and Law Enforcement, 79 OR. L. REV. 391, 410 (2000).
261. See MUN. CODE OF CHI., ILL. § 8-4-015 (1992).
262. Meares, supra note 49, at 225.
263. Meares, supra note 184, at 1612-13.
264. Jenny Berrien & Christopher Winship, Should We Have Faith in the Churches? The Ten-Point Coalition's Effect on Boston's Youth Violence, in GUNS, CRIME, AND PUNISHMENT IN AMERICA 222, 239-42 (Bernard E. Harcourt ed., 2003).
265. City of Chicago v. Morales, 527 U.S. 41, 64 (1999) (holding that Chicago's anti-gang loitering ordinances were unconstitutionally vague).
266. See Meares, supra note 184, at 1627.
267. Berrien & Winship, supra note 196, at 243; Meares, supra note 192, at 401.
268. Berrien & Winship, supra note 196, at 239.
269. Cf. E.P. Hollander, Conformity, Status, and Idiosyncrasy Credit, 65 PSYCH. REV. 117, 124 (1958) (describing how early conformity to group expectancies increases status which, at a later stage, allows greater latitude for idiosyncratic behavior).
270. Bilz & Darley, supra note 25, at 1249-50.
271. As Montgomery lawyer Steven VanGrack put it, "I'd be outraged if the feds took over this case. . . . Most of the people died here. I think most people want the local prosecutor to prosecute it." Morello & Shaver, supra note 71.
272. See Castetter, supra note 136, at 547-53.
273. Indeed, some of the most disgusting abuses of justice occurred when the central government failed to intervene in particularly atrocious council rulings. Perhaps most notoriously in recent years, it initially failed to intervene when a council ordered a boy's sister to be gang-raped as a punishment for his offense. For an account, see Ian Fisher, Account of Punjab Rape Tells of a Brutal Society, N.Y. TIMES, July 17, 2002, at A3.
274. Castetter, supra note 136, at 569.
275. Id. at 558.