The disutility of injustice

New York University Law Review

Volumn 85, Issue 6, 2010, Pages 1940-2033

  Robinson, Paul H ^a   Goodwin, Geoffrey P ^b   Reisig, Michael D ^c  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

^b UNIVERSITY OF PENNSYLVANIA   (United States)

^c ARIZONA STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79251629744     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (488)

1. See Paul H. Robinson, Empirical Desert, in CRIMINAL LAW CONVERSATIONS 29, 29-31 (Paul H. Robinson et al. eds., 2009) [hereinafter Robinson, Empirical Desert] (suggesting that aligning distribution of punishment with empirical desert strengthens law's moral credibility).
2. Paul H. Robinson & John M. Darley, Intuitions of Justice: Implications for Criminal Law and Justice Policy, 81 S. CAL. L. REV. 1, 18-31 (2007) [hereinafter Robinson & Darley, Intuitions of Justice] (arguing that concurrence of empirical desert and criminal law is optimal).
3. See Robinson & Darley, Intuitions of Justice, supra note 1, at 18-31.
4. See Kevin M. Carlsmith & John M. Darley, Psychological Aspects of Retributive Justice, in 40 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 193, 233-34 (Mark Zanna ed., 2008) (presenting empirical study showing that people primarily react to crime descriptions emotionally and favor proportional just deserts, and noting that "[c]ontempt will develop when the sentencing practices of the society are importantly out of synchrony with the citizens' rank orderings of the blameworthiness of crimes").
5. Kevin M. Carlsmith, John M. Darley & Paul H. Robinson, Why Do We Punish? Deterrence and Just Deserts as Motives for Punishment, 83 J. PERSONALITY & SOC. PSYCHOL. 284, 295 (2002) (presenting empirical study demonstrating that people assess punishment based upon desert criterion, rather than upon factors relevant to deterrence).
6. John M. Darley, Kevin M. Carlsmith & Paul H. Robinson, Incapacitation and Just Deserts as Motives for Punishment, 24 L. & HUM. BEHAV. 659, 676 (2000) (presenting empirical studies finding that people assess punishment based upon desert criterion, rather than upon factors relevant to dangerousness).
7. See Paul H. Robinson, Competing Conceptions of Modern Desert: Vengeful, Deontological, and Empirical, 67 CAMBRIDGE L.J. 145, 152-53 (2008) (contrasting conceptions of desert and their effectiveness in crime control).
8. For a discussion of the practical differences between deontological and empirical desert, see PAUL H. ROBINSON, DISTRIBUTIVE PRINCIPLES OF CRIMINAL LAW: WHO SHOULD BE PUNISHED HOW MUCH? 138-40 (2008) [hereinafter ROBINSON, DISTRIBUTIVE PRINCIPLES].
9. MODEL PENAL CODE § 1.02 (Proposed Official Draft 1962) (emphasis added).
10. MODEL PENAL CODE § 1.02 (Tentative Draft No. 1, 2007) (emphasis added).
11. See ROBINSON, DISTRIBUTIVE PRINCIPLES, supra note 5, at 48-49 (arguing that deterrence is effective only if following conditions are satisfied: potential offender is aware of legal rule, foresees meaningful chance of punishment, evaluates costs of violating law as outweighing benefits of doing so, and is able to bring information about relevant net costs to bear on her behavior).
12. Paul H. Robinson & John M. Darley, Does Criminal Law Deter? A Behavioural Science Investigation, 24 OXFORD J. LEGAL STUD. 173, 173 (2004) (arguing that deterrent effect of criminal law is not typical).
13. Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 GEO. L.J. 949, 951 (2003) (arguing conditions necessary for deterrence to work are not typical in modern societies).
14. See ROBINSON, DISTRIBUTIVE PRINCIPLES, supra note 5, at 99-108 (evaluating effec- tiveness of rehabilitation as both deterrent and distributive principle).
15. See id. at 130-33 (arguing that civil commitment of dangerous offenders would be both more efficient and effective for community protection and fairer to offenders than would using criminal justice system for such preventive detention, as now occurs).
16. Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 HARV. L. REV. 1429, 1454-56 (2001) [hereinafter Robinson, Punishing Dangerousness] (same).
17. Council of Judges of the Nat'l Council on Crime and Delinquency, Model Sentencing Act: Second Edition, 18 CRIME & DELINQ. 335, 341 (1972).
18. The Act diminishes [differences in] sentencing according to the particular offense. Under [the Act] the dangerous offender may be committed to a lengthy term; the nondangerous defendant may not. It makes available, for the first time, a plan that allows the sentence to be determined by the defendant's make-up, his potential threat in the future, and other similar factors, with a minimum of variation according to the offense.
19. The commentary to the Model Sentencing Act is openly hostile to desert. See id. at 344-45.
20. ("[S]entencing on the basis of the offense does not satisfactorily provide public protection. Vengeance or punishment is not a proper motive for a sentence."). The Council even argues that exceeding the minimum sentence required for public safety (which may be, and often is, in serious conflict with desert) "is a disservice to the entire penal system."
21. Id. at 363.
22. Additional discussion of the Model Sentencing Act can be found in Robinson, Punishing Dangerousness, supra note 10, at 1440-41.
23. Perhaps the best evidence of the common wisdom that there is no crime-control cost in deviating from the community's conception of desert is shown in Table 4 and Figure 1 in Part II, infra, which demonstrate how the most popular modern crime-control doctrines described in Part I, infra, seriously conflict with those community conceptions.
24. Anthony Bottoms, The Philosophy and Politics of Punishment and Sentencing, in THE POLITICS OF SENTENCING REFORM 17, 39-41 (Christopher M.V. Clarkson & Rodney Morgan eds., 1995) (defining "populist punitiveness" as overtly political phenomenon).
25. Similarly, David Garland decries this attention to community views and holds it accountable for the draconian sentences and policies of current law: A few decades ago public opinion functioned as an occasional brake on policy initiatives: now it operates as a privileged source. The importance of research and criminological knowledge is downgraded and in its place is a new deference to the voice of "experience," of "common sense," of "what everyone knows." [T]he ruling assumption now is that "prison works"-not as a mechanism of reform or rehabilitation, but as a means of incapacitation and punishment that satisfies popular political demands for public safety and harsh retribution.
26. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 13-14 (2001) (footnote omitted).
27. See, e.g., Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 1009 (2000) (arguing that assessment of law enforcement policies should depend exclusively on their effects on individuals' welfare and accord no independent weight to conceptions of fairness in order to maximize crime control).
28. Erik Luna, Punishment Theory, Holism, and the Procedural Conception of Restorative Justice, 2003 UTAH L. REV. 205, 225-27 (describing argument that using empirical desert as distributive principle may result in increase of crime that might not be measurable ex ante).
29. For a discussion of these issues, see Paul H. Robinson, The Role of Moral Philosophers in the Competition Between Philosophical and Empirical Desert, 48 WM. & MARY L. REV. 1831, 1838-43 (2007).
30. See id. at 1839-40 (describing and criticizing philosophical attempts to harmonize popular intuitions into "reflective equilibrium").
31. See ROBINSON, DISTRIBUTIVE PRINCIPLES, supra note 5, at 210-12 ("[A] charge to prevent crime is, as a practical matter, a charge primarily to do justice-to consider just desert-for that will reduce crime more than distributive criteria that ignore desert.").
32. Robinson, Empirical Desert, supra note 1, at 29-31 (arguing that use of empirical desert as distributive principle strengthens law's moral credibility).
33. Robinson & Darley, Intuitions of Justice, supra note 1, at 18-31 (same).
34. See Rummel v. Estelle, 445 U.S. 263, 285 (1980).
35. For more details on the Rummel case, see PAUL H. ROBINSON, WOULD YOU CONVICT? SEVENTEEN CASES THAT CHALLENGED THE LAW 28-32 (1999) [hereinafter ROBINSON, WOULD YOU CONVICT].
36. PAUL H. ROBINSON, CRIMINAL LAW CASE STUDIES 28 (4th ed. 2010).
37. ROBINSON, WOULD YOU CONVICT, supra note 17, at 32.
38. Id. at 29.
39. Id. at 32.
40. According to Texas penal law and practice at the time, Rummel may have been eligible for parole after serving twelve years of his sentence with good behavior.
41. Rummel, 445 U.S. at 280.
42. see also Brief for the Respondent, Rummel v. Estelle, 445 U.S. 263 (1980) (No. 78-6386), 1979 WL 199781, at *16-17 (explaining Texas's parole system and suggesting that Rummel would be eligible to serve twelve years with good conduct or even ten if he earned "trusty status").
43. Rummel, 445 U.S. at 285.
44. Rummel v. Estelle, 587 F.2d 651, 654 (5th Cir. 1978) (en banc), vacating 568 F.2d 1193 (5th Cir. 1978).
45. Almond v. United States, 854 F. Supp. 439, 445 (W.D. Va. 1994).
46. PAUL H. ROBINSON & MICHAEL T. CAHILL, LAW WITHOUT JUSTICE: WHY CRIMINAL LAW DOESN'T GIVE PEOPLE WHAT THEY DESERVE 132-33 (2005) [hereinafter ROBINSON & CAHILL, LAW WITHOUT JUSTICE].
47. See authorities and examples collected in Robinson, Punishing Dangerousness, supra note 10, at 1429 n.2.
48. See id. at 1429 n.7 (explaining incapacitation rationale for habitual offender statutes).
49. See BUREAU OF JUSTICE ASSISTANCE, U.S. DEP'T OF JUSTICE, 1996 NATIONAL SURVEY OF STATE SENTENCING STRUCTURES 16-17 & exhibit 1-9 (1998), available at http://www.ncjrs.gov/pdffiles/169270.pdf (noting in 1996 that twenty-four states had enacted twoor three-strikes laws and that "overwhelming majority" of such laws had been passed between 1993 and 1995).
50. Note that the number of "strikes" in recidivist statutes is not always three. It is sometimes two (North Dakota, South Carolina), and sometimes four (Georgia, Maryland). N.D. CENT. CODE § 12.1-32-09 (1997).
51. S.C. CODE ANN. § 17-25-45 (2003).
52. GA. CODE ANN. § 17-10-7 (2008).
53. MD. CODE ANN., CRIM. LAW § 14-101 (LexisNexis 2002).
54. E.g., 18 U.S.C. § 3559(C) (2006).
55. N.M. STAT. ANN. § 31-18-23 (LexisNexis 2009).
56. VA. CODE ANN. § 19.2-297.1 (2008).
57. E.g., GA. CODE ANN. § 17-10-7 (2008) (requiring two strikes for violent felonies, four strikes for others).
58. N.D. CENT. CODE § 12.1-32-09 (1997) (allowing for habitual offender sentence when offender has two prior convictions for felonies of Class C or above, which may include out-of-state felony convictions punishable by maximum prison terms of five years or more).
59. S.C. CODE ANN. § 17-25-45 (2003) (requiring life imprisonment without possibility of parole for offenders with two or more convictions for "most serious offense[s]," including certain nonviolent crimes, or upon conviction of three or more "serious offenses," including drug trafficking felonies).
60. E.g., ALA. CODE § 13A-5-9 (2005) (imposing enhanced penalty for felonies where defendant was previously convicted of felony).
61. ALASKA STAT. § 12.55.125 (2008) (specifying sentence ranges for certain felonies by first-time, second-time, and third-time offender status).
62. S.D. CODIFIED LAWS § 22-7-7 (2006) (enhancing sentence for principal felony if defendant was previously convicted of one or two felonies).
63. See Rebecca Tuhus-Dubrow, Talking with Anthony Papa, THE NATION, Dec. 27, 2004, http://www.thenation.com/doc/20041227/tuhusdubrow. Papa serves twelve years of his sentence before being granted clemency.
64. 501 U.S. 957 (1991).
65. Id. at 995-96.
66. 110 F.3d 921 (2d Cir. 1997).
67. The U.S. Sentencing Guidelines range after those adjustments is fifty-one to sixtythree months.
68. Id. at 926.
69. See, e.g., Edward L. Glaeser et al., What Do Prosecutors Maximize? An Analysis of the Federalization of Drug Crimes, 2 AM. L. & ECON. REV. 259, 259-60 (2000) (stating that since 1970s, Congress has expanded federal jurisdiction over drug crimes, and noting that "virtually any drug crime can now be prosecuted federally").
70. The U.S. Sentencing Guidelines suggest 0 to 6 months for possession, and 0 months up to a maximum of 293 months for possession with intent to manufacture, import, export, or traffic. See U.S. SENTENCING GUIDELINES MANUAL §§ 2D1.1(c), 2D2.1(a) (2006).
71. All sentencing statistics are taken from Bureau of Justice Statistics, U.S. Dep't of Justice, Defendants Sentenced in U.S. District Courts: By Offense, and Type and Length of Sentence, Fiscal Year 2005, in Sourcebook of Criminal Justice Statistics tbl.5.25.2005, http://www.albany.edu/sourcebook/pdf/t5252005.pdf (last visited Aug. 27, 2010).
72. See Glaeser et al., supra note 36, at 260 (noting that expansion of federal jurisdiction and harsher federal penalties could implicate deterrence and equity considerations).
73. See infra notes 45-49.
74. cf. Roper v. Simmons, 543 U.S. 551, 578-79 (2005) (holding it unconstitutional to impose capital punishment for crimes committed by defendant under age eighteen).
75. See Kate Randall, Another Florida Teenager Receives Harsh Adult Prison Sentence, WORLD SOCIALIST WEB SITE (Aug. 3, 2001), http://www.wsws.org/articles/2001/aug2001/flor-a03.shtml.
76. Kim Smith, Teen Gets Life for Killings of His Parents, ARIZ. DAILY STAR, Sept. 23, 2005, at B4.
77. Mitch Tobin, Teen Guilty in 2 Killings, ARIZ. DAILY STAR, Aug. 25, 2005, at B1.
78. Id. When detectives searched his house, they found marijuana in Eggers's room. Appellee's Answering Brief at 3, State v. Eggers, No. 2 CA-CR 05-0320 (Ariz. Ct. App. 2005).
79. See PATRICK GRIFFIN Et Al., U.S. DEP'T OF JUSTICE, TRYING JUVENILES AS ADULTS IN CRIMINAL COURT: AN ANALYSIS OF STATE TRANSFER PROVISIONS 1 (1998).
80. E.g., ME. REV. STAT. ANN. tit. 15, § 3101 (West Supp. 2009).
81. E.g., IND. CODE ANN. § 31-30-3-4 (LexisNexis 2007) (only for murder).
82. VT. STAT. ANN. tit. 33, § 5506 (2001).
83. E.g., ALA. CODE § 12-15-34.1 (2005).
84. MINN. STAT. ANN. § 260B.125 (West 2007).
85. N.J. STAT. ANN. § 2A:4A-26 (West Supp. 2010).
86. E.g., D.C. CODE § 16-2307 (LexisNexis 2008) (at least fifteen, with one exception of no minimum age for illegal possession of firearm within 1000 feet of school or day care center).
87. OR. REV. STAT. §§ 419C.349,.352 (2010) (fifteen, with no minimum-age exceptions for certain cases of murder, rape, sodomy and unlawful sexual penetration).
88. TENN. CODE ANN. § 37-1-134 (2005) (sixteen, no exceptions).
89. WASH. REV. CODE ANN. § 13.40.110 (West Supp. 2009) (sixteen, no exceptions).
90. Arizona law does not allow evidence of mental illness to be introduced to negate specific intent elements for any crime. State v. Mott, 931 P.2d 1046, 1051 (Ariz. 1997).
91. The State does allow a general insanity defense, but only one that is narrow in scope and that puts the burden on the defendant to prove "by clear and convincing evidence" that he was insane. ARIZ. REV. STAT. § 13-502(A)-(C) (LexisNexis 2008).
92. Clark v. Arizona, 548 U.S. 735, 746 (2006).
93. Id. at 779.
94. Yates v. State, 171 S.W.3d 215 (Tex. Crim. App. 2005).
95. Id. at 216-22.
96. The Texas Penal Code provides: "It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong." TEX. PENAL CODE ANN. § 8.01(a) (West 2003).
97. "Wrong" in this sense is interpreted under Texas law to mean "illegal." Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008).
98. Montana, MONT. CODE ANN. § 46-14-214 (2007).
99. Utah, UTAH CODE ANN. § 76-2-305 (LexisNexis 2008).
100. United States, 18 U.S.C. § 17 (2006).
101. Alabama, ALA. CODE § 15-16-2 (LexisNexis 2008).
102. Alaska, ALASKA STAT. § 12.47.010 (2008).
103. Arizona, ARIZ. REV. STAT. ANN. §§ 13-502(A)-(B) (2008).
104. Arkansas, ARK. CODE ANN. § 5-2-312 (2008).
105. California, People v. Drew, 583 P.2d 1318 (Cal. 1978).
106. Colorado, COLO. REV. STAT. §§ 16-8-101(1), -104, -105(2) (2007).
107. Delaware, DEL. CODE ANN. tit. 11, §§ 304a, 401 (2007).
108. Florida, FLA. R. CRIM. P. § 3.217.
109. Illinois, 720 ILL. COMP. STAT. ANN. 5/6-2 (LexisNexis 2008).
110. Indiana, IND. CODE ANN. §§ 35-41-3-6, -4-1(b) (West 2004).
111. Kansas, State v. Roadenbaugh, 673 P.2d 1166 (Kan. 1982).
112. State v. Grauerholz, 654 P.2d 395 (Kan. 1982).
113. Louisiana, LA. REV. STAT. ANN. § 14:14 (2007).
114. Maine, ME. REV. STAT. ANN. tit. 17-A, § 39 (2006).
115. Minnesota, MINN. STAT. ANN. § 611.026 (West 2009).
116. Mississippi, Herron v. State, 287 So. 2d 759 (Miss. 1974).
117. Missouri, MO. ANN. STAT. § 552.030 (West 2009).
118. Nebraska, NEB. REV. STAT. § 29-2203 (2009).
119. Nevada, Poole v. State, 625 P.2d 1163 (Nev. 1981).
120. New Hampshire, State v. Plummer, 374 A.2d 431 (N.H. 1977).
121. New Jersey, N.J. STAT. ANN. § 2C:4-2 (West 2005).
122. New York, N.Y. PENAL LAW § 40.15 (Consol. 2008).
123. North Carolina, State v. Vickers, 291 S.E.2d 599 (N.C. 1982).
124. Oklahoma, Munn v. State, 658 P.2d 482 (Okla. 1983).
125. Pennsylvania, 18 PA. CONS. STAT. ANN. § 315 (West 1998).
126. South Carolina, S.C. CODE ANN. § 17-24-10 (2007).
127. South Dakota, State v. Kost, 290 N.W.2d 482 (S.D. 1980).
128. Tennessee, State v. Clayton, 656 S.W.2d 344 (Tenn. 1983).
129. Texas, TEX. PENAL CODE ANN. §§ 2.04, 8.01 (West 2003).
130. Washington, WASH. REV. CODE ANN. § 10.77.030(2) (West 2002).
131. Connecticut, CONN. GEN. STAT. § 53a-13(a) (2007).
132. District of Columbia, Bethea v. United States, 365 A.2d 64 (D.C. 1976).
133. Georgia, GA. CODE ANN. § 16-3-3 (2007).
134. Hawaii, HAW. REV. STAT. § 704-400 (2009).
135. Idaho, State v. White, 456 P.2d 797 (Idaho 1969).
136. Iowa, IOWA CODE ANN. § 701.4 (West 2003).
137. Kentucky, KY. REV. STAT. ANN. § 504.020 (West 2008).
138. Maryland, MD. CODE ANN., CRIM. PROC. § 3-109 (LexisNexis 2008).
139. Massachusetts, Commonwealth v. McHoul, 226 N.E.2d 556 (Mass. 1967).
140. Michigan, MICH. COMP. LAWS ANN. § 768.21(a) (West 2008).
141. New Mexico, N.M. STAT. ANN. § 31-9-3 (LexisNexis 2009).
142. Ohio, State v. Anders, 277 N.E.2d 554 (Ohio 1972).
143. Oregon, OR. REV. STAT. § 161.295 (2009).
144. Rhode Island, State v. Johnson, 399 A.2d 469 (R.I. 1979).
145. Vermont, VT. STAT. ANN. tit. 13, § 4801 (2009).
146. Virginia, Godley v. Commonwealth, 343 S.E.2d 368 (Va. Ct. App. 1986).
147. West Virginia, State v. Lockhart, 490 S.E.2d 298 (W. Va. 1997).
148. Wisconsin, WIS. STAT. ANN. § 971.15 (West 2007).
149. Wyoming, WYO. STAT. ANN. § 7-11-304 (2009).
150. Garnett v. State, 632 A.2d 797 (Md. 1993).
151. For further facts, see PAUL H. ROBINSON, CRIMINAL LAW: CASE STUDIES AND CONTROVERSIES 114 (2d ed. 2008) [hereinafter ROBINSON, CRIMINAL LAW: CASE STUDIES].
152. ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 23, at 63-65.
153. Garnett's prison sentence is suspended, and he is put on probation. Garnett, 632 A.2d 799, 803-04.
154. State v. Haas, No. A-05-804, 2006 WL 996535, at *5 (Neb. Ct. App. Apr. 18, 2006).
155. People v. Adkins, No. 257845, 2006 WL 142120, at *1 (Mich. Ct. App. Jan. 19, 2006).
156. See Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 AM. U. L. REV. 313, 385-91 (2003) (categorizing each state's approach as among true crime, strict liability, and hybrid, with majority employing strict liability).
157. For states that employ a strict liability approach, see, for example, FLA. STAT. ANN. § 794.021 (West 2007).
158. N.J. STAT. ANN. § 2C:14-5(c) (West 2005).
159. WIS. STAT. ANN. § 939.43(2) (West 2005).
160. For states that allow for a mistake defense, see, for example, IND. CODE ANN. § 35-42-4-3(c) (LexisNexis 2009).
161. MO. REV. STAT. § 566.020 (2000).
162. and W. VA. CODE ANN. § 61-8B-12 (LexisNexis 2005).
163. The federal approach is a hybrid, with strict liability only for sexual contact with children under the age of twelve. 18 U.S.C. § 2441(d) (2006).
164. See Leocal v. Ashcroft, 543 U.S. 1, 8 n.5 (2004) (listing states where driving under the influence is treated as strict liability offense).
165. See, e.g., Morissette v. United States, 342 U.S. 246, 255 (1952) (comparing nature of "public welfare offenses," which involve neglect or inaction with regard to duty of care, to accepted classifications of common law offenses, which involve "positive aggressions or invasions").
166. Francis Bowes Sayre, Public Welfare Offenses, 33 COLUM. L. REV. 55, 84-88 (1933) (listing state cases involving public welfare offenses with no mens rea requirement).
167. WAYNE R. LAFAVE, CRIMINAL LAW 272 n.1 (4th ed. 2003).
168. Id. at 279.
169. MODEL PENAL CODE § 2.05(1)(a) (Proposed Official Draft 1962).
170. Id. § 213.6(1).
171. See LAFAVE, supra note 66, at 744-65 (providing general overview of felony murder rule).
172. State v. Moore, No. 2006-KA-1979, 2007 WL 914637, at *1 (La. Ct. App. Mar. 28, 2007).
173. Heacock v. Commonwealth, 323 S.E.2d 90, 93 (Va. 1984). Heacock's sentence is actually eighty years imprisonment, but forty years of the sentence are suspended.
174. United States, 18 U.S.C. § 1111(a) (2006).
175. Alabama, ALA. CODE § 13A-6-2(a)(3) (2009).
176. Alaska, ALASKA STAT. § 11.41.110(a)(3) (2008).
177. Arizona, ARIZ. REV. STAT. ANN. § 13-1105(A)(2) (2010).
178. California, CAL. PENAL CODE § 1-8-1-189 (West 2008).
179. Colorado, COLO. REV. STAT. ANN. § 18-3-102(1)(b) (West 2009).
180. Connecticut, CONN. GEN. STAT. ANN. § 53(a)-54(c) (West 2007).
181. District of Columbia, D.C. CODE § 22-2101 (LexisNexis 2010).
182. Florida, FLA. STAT. ANN. § 782.04 (West 2007).
183. Idaho, IDAHO CODE ANN. § 18-4003(d) (2004).
184. Illinois, 720 ILL. COMP. STAT. ANN. 5/9-1(a)(3) (West 2002).
185. Indiana, IND. CODE ANN. § 35-42-1-2, -3 (West 2004).
186. Iowa, IOWA CODE § 707.2.2-.3 (2007).
187. Kansas, KAN. STAT. ANN. § 21-3401(b) (2007).
188. Louisiana, LA. REV. STAT. ANN. § 14:30(A)(1) (2007).
189. Maine, ME. REV. STAT. ANN. tit. 17-A, § 202(1) (2006).
190. Maryland, MD. CODE ANN., CRIM. LAW § 2-201(a)(4) (LexisNexis 2002).
191. Massachusetts, MASS. ANN. LAWS ch. 265, § 1 (LexisNexis 2008).
192. Michigan, MICH. COMP. LAWS ANN. § 750.316(1)(b) (West 2004).
193. Minnesota, MINN. STAT. ANN. § 609.185(a)(2)-(3) (West 2009).
194. Mississippi, MISS. CODE ANN. § 97-3-19(1)(c) (2005).
195. Montana, MONT. CODE ANN. § 45-5-102(1)(b) (2009).
196. Nebraska, NEB. REV. STAT. § 28-303(2) (2009).
197. Nevada, NEV. REV. STAT. § 200.030(1)(b) (2009).
198. New Jersey, N.J. STAT. ANN. § 2C:11-3.a(3) (West 2005).
199. New York, N.Y. PENAL LAW § 125.25(3) (Consol. 1998).
200. North Carolina, N.C. GEN. STAT. ANN. § 14-17 (West 2000).
201. North Dakota, N.D. CENT. CODE § 12.1-16-01(1)(c) (1997).
202. Ohio, OHIO REV. CODE ANN. § 2903.01(B) (West 2006).
203. Oregon, OR. REV. STAT. § 163.115(1)(b) (2009).
204. Rhode Island, R.I. GEN. LAWS § 11-23-1 (2002).
205. South Carolina, S.C. CODE ANN. § 16-3-20(c)(a)(1) (2003).
206. South Dakota, S.D. CODIFIED LAWS § 22-16-4(1) (2006).
207. Tennessee, TENN. CODE ANN. § 39-13-202(a)(2)-(3) (2006).
208. Utah, UTAH CODE ANN. § 76-5-203(2)(d) (LexisNexis 2008).
209. Vermont, VT. STAT. ANN. tit. 13, § 2301 (2009).
210. Virginia, VA. CODE ANN. § 18.2-32 (2009).
211. West Virginia, W. VA. CODE ANN. § 61-2-1 (2005).
212. Wisconsin, WIS. STAT. ANN. § 940.03 (West 2005).
213. Wyoming, WYO. STAT. ANN. § 6-2-101(a) (2009).
214. Arkansas, ARK. CODE ANN. § 5-10-102(a)(1) (2006).
215. Delaware, DEL. CODE ANN. tit. 11, § 636(a)(2) (2007).
216. Georgia, GA. CODE ANN. § 16-5-1 (2007).
217. Missouri, MO. REV. STAT. § 565.021.1(2) (1999).
218. New Hampshire, N.H. REV. STAT. ANN. § 630:1-b (2007).
219. New Mexico, N.M. STAT. ANN. § 30-2-1-A(2) (2004).
220. Oklahoma, OKLA. STAT. ANN. tit. 21, § 701.7(B) (West 2002).
221. Pennsylvania, 18 PA. CONS. STAT. § 2502(b) (1998).
222. Texas, TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2003).
223. Washington, WASH. REV. CODE ANN. § 9A.32.030(1)(c), -.050(1)(b) (2009).
224. Hawaii, HAW. REV. STAT. § 707-701 (1996).
225. Kentucky, KY. REV. STAT. ANN. § 507.020 (LexisNexis 2008).
226. 16 U.S.C. § 1372 (2006).
227. United States v. McNab, 324 F.3d 1266 (11th Cir. 2003).
228. Tony Mauro, Lawyers See Red Over Lobster Case, LEGAL TIMES, Feb. 18, 2004, available at http://www.law.com/jsp/article.jsp?id=1122023117263&hbx.
229. The Honduran courts subsequently invalidated one of the regulations serving as the basis for the violation of Honduran law-the requirement that tails be no shorter than 5.5 inches. However, even though the laws were declared void retroactively, the Eleventh Circuit Court of Appeals upheld the defendants' convictions, stating that the District Court was able to determine on its own whether the law was valid at the time the offense was committed. Thus, even though the defendants could not be found liable for a violation under Honduran law, they were held liable for violation of the Lacey Act.
230. See ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 23, at 187 (discussing facts).
231. United States v. Lindsey, 595 F.2d 5, 6 (9th Cir. 1979).
232. ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 23, at 187-89.
233. Before being indicted, Lindsey shows the agents a stipulation in the legislation creating the Hells Canyon Recreation Area that states that permits are not required to camp below the high-water mark. A district court judge dismisses the case for lack of jurisdiction.
234. Lindsey, 595 F.2d at 6.
235. However, the Ninth Circuit Court of Appeals rules that the federal government has the power to regulate conduct on state land when necessary to protect adjacent federal land. Id. The case is remanded to the District Court, but the prosecutor does not pursue it further.
236. ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 23, at 192.
237. Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747, 755 (2005).
238. Id. at 754.
239. E.g., 17 U.S.C. § 101 (2006).
240. id. § 1204.
241. E.g., 33 U.S.C. § 1319(c) (2006).
242. E.g., 7 U.S.C. § 2009 (2006).
243. see also United States v. Ntshona, 156 F.3d 318 (2d Cir. 1998).
244. United States v. Goldstein, 883 F.2d 1362 (7th Cir. 1989).
245. See William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 513 (2001) (discussing rise in number of offenses).
246. In 2000, Governor George Ryan issued an Executive Order ordering the creation of a Criminal Code Rewrite and Reform Commission whose purpose was to study existing criminal law and create clearer and more coherent standards.
247. See 24 Ill. Reg. 7755 (May 4, 2000).
248. Michael T. Cahill & Paul H. Robinson, Can a Model Penal Code Second Save the States from Themselves?, 1 OHIO ST. J. CRIM. L. 169, 170-73 (2003).
249. Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 MINN. L. REV. 1829, 1867 (2007).
250. See Charles M.M. de Weert & Noud A.W.H. van Kruysbergen, Assimilation: Central and Peripheral Effects, 26 PERCEPTION 1217, 1219-21 (1997) (describing experiment in which subjects were asked to judge brightness of black and white patterns, yielding high Kendall's coefficient of concordance).
251. See Baruch Fischhoff et al., Travel Risks in a Time of Terror: Judgments and Choices, 24 RISK ANALYSIS 1301, 1303 (2004) (illustrating results of study designed to elicit attitudes regarding travel risks).
252. Kostas Axarloglou & Vasilis Theoharakis, Diversity in Economics: An Analysis of Journal Quality Perceptions, 1 J. EUR. ECON. ASS'N 1402, 1422 (2003) (examining perceptions of journal quality among American Economic Association (AEA) members, and finding that these perceptions vary widely across AEA subgroups).
253. One might note that an exception here is the case of burglary, which is graded more seriously by the criminal code than it is ranked by the subjects. This disparity is probably due in large part to the problem of "combination offenses" (burglary is simply a combination of one offense, such as theft, and the offense of criminal trespass).
254. For general discussion of the problem of combination offenses, see ROBINSON, CRIMINAL LAW: CASE STUDIES, supra note 59, at 812-15.
255. and Paul H. Robinson et al., Codifying Shari'a: International Norms, Legality, and the Freedom To Invent New Forms, 2 J. COMP. L. 1, 39 (2007).
256. MODEL PENAL CODE (Proposed Official Draft 1962).
257. Bureau of Justice Statistics, U.S. Dep't of Justice, First Releases from State Prison: Sentence Length, Time Served, and Percent of Sentence Served, By Offense, in NATIONAL CORRECTIONS REPORTING PROGRAM (2003), available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2045.
258. U.S. SENTENCING GUIDELINES MANUAL (2008).
259. Robinson & Kurzban, supra note 88, at 1868.
260. Federal and state sentences typically are a product of the exercise of judicial discretion or crime-control policymaking. See Stephanos Bibas et al., Policing Policies at Sentencing, 103 NW. U. L. REV. 1371, 1377 n.24 (2009) (collecting studies of how judges' different sentencing philosophies influence sentencing outcomes).
261. Max M. Schanzenbach & Emerson H. Tiller, Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform, 75 U. CHI. L. REV. 715, 720 n.30 (2008) (finding in empirical studies that policy preferences of judges influence sentencing and that judges selectively use adjustments and departures to enhance or reduce sentences).
262. see also Dissenting View of Commissioner Paul H. Robinson on the Promulgation of Sentencing Guidelines by the United States Sentencing Commission, 52 Fed. Reg. 17,915, 18,121-22 (May 1, 1987) (arguing that federal sentencing guidelines as promulgated lacked coherent organizing principle).
263. While offenders typically may be required to serve the entire sentence imposed, they also may be released from prison to parole supervision, subject to reimprisonment for a parole violation. These are the actual prison terms served by those offenders for whom information is available: Yates, whose life sentence was overturned on appeal due to questions regarding the proof of the underlying facts, has been held in a state mental hospital for three years with no release date currently set.
264. Woman Not Guilty in Retrial in the Deaths of Her 5 Children, N.Y. TIMES, July 27, 2006, at A20.
265. Brazill has a scheduled release date in 2028, which would mean a term served of almost twenty-seven years. FLA. DEP'T OF CORR., INMATE POPULATION INFORMATION DETAIL, http://www.dc.state.fl.us/ActiveInmates/detail.asp?Bookmark=2&From=list&SessionID=486501272 (last visited Oct. 27, 2010).
266. Clark, who has served six years as of this writing, has no release date set. ARIZ. DEP'T OF CORR., http://www.azcorrections.gov/inmate_datasearch/results.aspx?InmateNumber=180165&LastName=CLARK&FNMI=E&SearchType=SearchInet (last visited Oct. 27, 2010).
267. Rummel's conviction was overturned after eight years in prison, on a claim of incompetent representation, after which an agreement was struck for a sentence of time served. S.A. Man Finally Free After 8-Year Ordeal, SAN ANTONIO EXPRESS NEWS, Nov. 15, 1980, at 2-A C.
268. Haas has a projected release date in 2035, which would mean a term served of just under thirty years. NEB. DEP'T OF CORR. SERVS., NEBRASKA INMATE DETAILS, http://dcs-inmatesearch.ne.gov/Corrections/InmateDisplayServlet?DcsId=62184 (last visited Oct. 27, 2010).
269. Blandford has a release date in 2011, which would mean a term served of eight years. FED. BUREAU OF PRISONS, INMATE LOCATOR, http://www.bop.gov/iloc2/InmateFinderServlet?Transaction=NameSearch (last visited Oct. 27, 2010).
270. Almond was released from prison in 2006, after having served thirteen years. FED. BUREAU OF PRISONS, INMATE LOCATOR, http://www.bop.gov/iloc2/InmateFinderServlet?Transaction=NameSearch (last visited Oct. 27, 2010).
271. Papa served twelve years. Tuhus-Dubrow, supra note 31.
272. See Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453, 496 (1997).
273. [hereinafter Robinson & Darley, Utility of Desert] ("An error can be forgiven if it is seen as 'out of character.' [People's] view of the system is likely to be governed by what they think the system is trying to do, by what they see as its motivation to do justice.").
274. TESS relies on a company called Knowledge Networks, which recruits samples from a panel that is representative of the entire U.S. population. To create this panel, Knowledge Networks utilizes probability-based sampling methods, using both randomdigit dialing and address-based sampling. Panel members do not need to be current web users, as Internet access and hardware are provided as needed. The random-digit dialing method incorporates both listed and unlisted telephone numbers as well as cell phone numbers. Panel members are all randomly selected, and unselected volunteers are not able to join. For a more complete description of this method.
275. see KNOWLEDGE NETWORKS, KNOWLEDGEPANEL DESIGN SUMMARY (2010), available at http://www.knowledgenetworks.com/knpanel/docs/KnowledgePanel(R)-Design-Summary-Description.pdf.
276. Forty-three subjects were excluded from our data analysis for not completing the initial ranking task. The remaining 317 subjects had the following demographic characteristics: Age: 18-29, 24%; 30-44, 27%; 45-59, 28%; 60+, 20%. Gender: male, 51%; female, 49%. Marital status: married, 60%; divorced or separated, 12%; widowed, 2%; living with partner, 5%; never married, 21%. Race: white, 80%; black, non-Hispanic, 7%; Hispanic, 9%; other, 4%. Education: some college, 24%; two-year college degree, 10%; four-year college degree, 25%; Master's degree, 9%; professional or doctorate degree, 3%. Median household income: $60,000-$74,999. Employment status: currently employed, 61%; retired, 14%; not working (laid off, looking for work, disabled, other), 25%. Political views: extremely liberal, 2%; liberal, 16%; slightly liberal, 14%; moderate, 30%; slightly conservative, 15%; conservative, 20%; extremely conservative, 4%.
277. See Robinson & Kurzban, supra note 88.
278. Subject responses of "death" were coded as fifty years, and subject responses of "life" were coded as forty years. Using these values, the mean sentences for Scenarios 12 and 11 were 44.5 and 38.9 years, respectively.
279. For a more detailed explanation of the scale, see PAUL H. ROBINSON & JOHN DARLEY, JUSTICE, LIABILITY, AND BLAME: COMMUNITY VIEWS AND THE CRIMINAL LAW 8 (1995).
280. Subjects' sentences were less severe than the law's for each test case considered on its own, all ps <.001. And the subjects' sentences for the crime-control cases were, on average, twenty years less severe than the sentence actually handed down in the case, a difference that is highly significant (t (307) = 78.81, p <.001). P-values represent the probability of obtaining the data given that the null hypothesis of no difference between the means is true. The p-values yielded by this t-test represent the probability of obtaining the observed data given that the null hypothesis of no difference between subjects' sentences and those of the law's is true.
281. The two insanity cases, I and K, were given two of the highest rankings and sentences among the "crime-control" cases (although not nearly as high as the courts gave). Those mean rankings and sentences are the result of a bimodal distribution (the only two cases of the twenty-four to have such), and both stood out as having the highest standard deviations (6.1 and 6.3, respectively, for rankings, and 16.7 and 19.0, respectively, for sentences) of the twenty-four cases. As earlier studies have suggested, lay intuitions are quite sympathetic to mitigations and excuses for seriously mentally ill offenders.
282. See infra text accompanying note 128.
283. This comparison between subjects' sentences and time served in state systems is appropriate because our subjects imposed the terms of imprisonment that they wanted to be served, without procedures for early release that some state systems permit. The federal system requires offenders to serve eighty-five percent of the sentence imposed.
284. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1988 (codified as amended at 18 U.S.C. § 3624 (2006)) (stating that prisoner may receive credit toward sentence of up to fifty-four days at end of each year of prisoner's sentence for satisfactory behavior, resulting in fifteen percent reduction of sentence, or eighty-five percent of sentence imposed).
285. Comparison of Punishment Assessments: TESS Sample Versus Pilot Sample (University of Pennsylvania undergraduates, N = 46):.
286. Compare the law's sentences for the milestone cases as shown by the average state sentences on Table 1, column 4, to the subjects' sentences shown on Table 4, column 2, in bold. Only in milestone case 5 (microwave from house) does the law's average sentence exceed the subjects' average sentence (2.4 years versus 2.3 years, respectively). On average, the milestone cases did not produce nearly as much deviation from the law as did the crime-control cases (t (307) = 87.08, p <.001).
287. See, e.g., Brandon K. Applegate et al., Assessing Public Support for Three-Strikesand-You're-Out Laws: Global Versus Specific Attitudes, 42 CRIM. DELINQ. 517, 526 tbl.3 (1996) (illustrating disparity between respondents' disfavor of leniency and support for life sentences for three-time offenders).
288. Other studies in the area have examined the effect of multiple offenses all committed before the offender is caught and punished for any of the offenses. Generally, sentencing for multiple past offenses shows a decrease in added punishment amount for each additional offense, rather than an increase.
289. See PAUL H. ROBINSON & JOHN M. DARLEY, JUSTICE, LIABILITY, AND BLAME: COMMUNITY VIEWS AND THE CRIMINAL LAW 189-97 (1995) [hereinafter ROBINSON & DARLEY, JUSTICE, LIABILITY, AND BLAME] (discussing theories and patterns of multiple-offense sentencing).
290. Id. at 522 tbl.2.
291. Id. at 523-24.
292. Id. at 525.
293. Compare Robinson & Kurzban, supra note 88, at 1885 tbl.6 (illustrating mean rank of 7.4 assigned to marijuana possession in Study 3).
294. and id. at 1888 tbl.8 (illustrating mean rank of 2.2 assigned to marijuana possession in Study 4).
295. with id. at 1869 tbl.1 (showing mean rank of 6.8 assigned to short-changing in Study 1).
296. and id. at 1876 tbl.3 (showing no offense with mean rank comparable to 2.2 in Study 2).
297. Id. at 1885.
298. Note that the subjects in the study with the larger, more demographically diverse subject pool (Study 2) treated these four drug offenses as significantly less serious than those in the smaller, more narrow pool of Study 1. Compare the mean rankings found in Table 6 (Study 3) to those of Table 8 (Study 4), which suggests that the text here may overstate the seriousness with which the population generally sees drug offenses.
299. Id. at 1885-88.
300. U.S. SENTENCING COMM'N, NATIONAL SAMPLE SURVEY: PUBLIC OPINION ON SENTENCING FEDERAL CRIMES 25 (1997), available at http://www.ussc.gov/nss/jp_exsum.htm.
301. Id. at 49.
302. Id. at 47.
303. ROBINSON & DARLEY, JUSTICE, LIABILITY, AND BLAME, supra note 110, at 141 tbl.5.5.
304. Elizabeth S. Scott et al., Public Attitudes About the Culpability and Punishment of Young Offenders 7 (Columbia Law Sch. Pub. Law & Legal Theory Working Paper Grp., Paper No. 07-135, 2007), available at http://ssrn.com/abstract=959635.
305. Id. at 8-9.
306. Id. at 13-14.
307. See ROBINSON & DARLEY, JUSTICE, LIABILITY, AND BLAME, supra note 110, at 132 tbl.5.2 (illustrating respondents' desires to impose civil commitment in cases involving serious offenses).
308. See id. at 89 tbl.4.1 (showing respondents' negligible imposition of punishment in light of negligent mistake).
309. See id. at 172-73 tbl.6.3, 179-80.
310. Id. at 180 ("[W]hile the [felony murder] doctrine treats the accomplice exactly like a murderer, the subjects impose liability somewhat less than they would for manslaughter.").
311. Id. at 36 tbl.2.9, 208-10 (dichotomous-continuous discussion).
312. Norman Finkel analyzed the responses of study subjects to felony-murder hypothetical cases, among others. NORMAN J. FINKEL, COMMONSENSE JUSTICE 164-71 (1995).
313. His data are hard to interpret because he placed his subjects in the roles of juror and appellate judge, so it is difficult to tell whether their decisions enforcing felony-murder rules reflected their own intuitions of justice or reflected their carrying out of their assigned role to apply the existing law as they believed it to be. In a hypothetical case involving a robbery victim dropping dead of a heart attack, 63% were willing to find first-degree murder (even though the law requires this in only a few jurisdictions), and 60% were willing to uphold such a verdict as constitutional.
314. See id. at 166.
315. About 50% of the subjects held accomplices of the gunman guilty of firstdegree murder. Id. at 167-68.
316. Though politicians frequently claim that their enactments are driven by public demand, it is often the case that they are in fact the motivation behind the public opinion itself. See infra Part III.B (describing studies identifying government as major source of information for crime-related media coverage that shapes public perception about criminal law). However, it is incontrovertible that they at least make the claim.
317. See, e.g., KATHERINE BECKETT, MAKING CRIME PAY: LAW AND ORDER IN CONTEMPORARY AMERICAN POLITICS 12 (1997) [hereinafter BECKETT, MAKING CRIME PAY].
318. David Schultz, No Joy in Mudville Tonight: The Impact of "Three Strike" Laws on State and Federal Corrections Policy, Resources, and Crime Control, 9 CORNELL J.L. & PUB. POL'Y 557, 568 (2000) (discussing public demand for "three strikes" laws in early 1990s and subsequent enactments championed by lawmakers acting in interests of those demanding stricter laws).
319. Stuntz, supra note 85, at 509 ("Voters demand harsh treatment of criminals; politi- cians respond with tougher sentences. and more criminal prohibitions.").
320. For an expansive treatment of the numerous factors that can cause the public to support harsh crime measures (and politicians to support them as well).
321. see generally Sara Sun Beale, What's Law Got To Do With It? The Political, Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23, 28-29, 31-32 (1997) [hereinafter Beale, What's Law Got to Do With It?].
322. See generally Beale, What's Law Got To Do With It?, supra note 133 (explaining how increase in crime rates during U.S. civil rights era led political campaigns to focus on crime control by following public perception of crime skewed by media coverage and cognitive errors such as overgeneralization of trends, overconfidence in opinions formed from minimal information, and availability of uniquely horrific cases to stand out as general examples of crimes).
323. Doron Teichman, The Market for Criminal Justice, 103 MICH. L. REV. 1831, 1847 (2005) (arguing that increased sentence lengths may be effort to displace criminal activity by offering relatively harsher punishments compared with nearby jurisdictions).
324. See, e.g., Rachel E. Barkow, The Political Market for Criminal Justice, 104 MICH. L. REV. 1713, 1718 (2006) (arguing that legislators increase criminal sentencing lengths to appear responsive to demands of voters and interest groups).
325. Schultz, supra note 133, at 558 (stating that intense public support for "three strike" laws led to their passage in twenty-two states and federally over two-year period).
326. JULIAN V. ROBERTS & LORETTA J. STALANS, PUBLIC OPINION, CRIME, AND CRIMINAL JUSTICE 197 (2000).
327. See BECKETT, MAKING CRIME PAY, supra note 133, at 78 (arguing that media repro- duction of official views on crime generates increased public support for punishmentfocused crime policies).
328. Francis T. Cullen et al., Public Opinion About Punishment and Corrections, 27 CRIME & JUST. 1, 26-27 (2000).
329. Michael J. Hindelang, Public Opinion Regarding Crime, Criminal Justice, and Related Topics, 11 J. RES. CRIM. & DELINQ. 101, 107-08 & tbl.4 (1974).
330. Julian V. Roberts & Anthony N. Doob, News Media Influences on Public Views of Sentencing, 14 L. & HUM. BEHAV. 451, 454-56 (1990).
331. Id. at 456-57.
332. Id. at 464.
333. Id. at 456.
334. Generally speaking, "the sentences reported by the newspapers confirmed the a priori view held by most respondents that sentences are generally too lenient." Id.
335. Id. at 457.
336. "[I]n 58% of the ratings, subjects indicated that they were 'very confident' of their evaluations. In an additional 35%, subjects indicated they were 'somewhat' confident. In only 7% were subjects 'not at all confident.'" Id.
337. RAY SURETTE, MEDIA, CRIME, AND CRIMINAL JUSTICE: IMAGES AND REALITIES 197 (2d ed. 1998).
338. Roberts & Doob, supra note 140, at 461.
339. Id. at 462.
340. Id. at 462-63.
341. Id. at 463.
342. See Shari S. Diamond, Using Psychology To Control Law: From Deceptive Advertising to Criminal Sentencing, 13 L. & HUM. BEHAV. 239, 247-48 (1989).
343. BECKETT, MAKING CRIME PAY, supra note 133, at 65.
344. Id. at 75.
345. Id. at 76.
346. Id. at 78.
347. Id. at 21.
348. Id. at 22.
349. Id. at 23.
350. Id. at 25.
351. President William J. Clinton, Address Before a Joint Session of the Congress on the State of the Union 126, 127, 133-35 (Jan. 25, 1994), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1994_public_papers_vol1_text&docid=pap_text-64.pdf.
352. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796.
353. see also Cornell W. Clayton & J. Mitchell Pickerill, The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court's Criminal Justice Jurisprudence, 94 GEO. L.J. 1385, 1407-08 (2006) (describing Act as "the largest single crime bill in history").
354. Roberts & Doob, supra note 140, at 464-65.
355. Id. at 452.
356. Jenny Roberts, The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of "Sexually Violent Predators," 93 MINN. L. REV. 670, 703 (2008) ("In 1990, Washington became the first state to pass a modern law allowing for involuntary commitment of 'sexually violent predators.' Other states quickly followed suit, and there are currently twenty states with some version of an SVPA [Sexually Violent Predators Act].").
357. For an example of statutes authorizing civil confinement post-sentence-completion, see Adam Walsh Child Protection and Safety Act, 18 U.S.C. § 4248 (2006).
358. Sexually Violent Persons Commitment Act, 725 ILL. COMP. STAT. ANN. 207 (West 2008) (invalidated by United States v. Comstock, 551 F.3d 274 (4th Cir. 2009), but upheld as constitutional by United States v. Tom, 565 F.3d 497 (8th Cir. 2009)).
359. KAN. STAT. ANN. § 59-29 (West Supp. 2009) (amended 2010).
360. Eric S. Janus, Sexual Predator Commitment Laws: Lessons for Law and the Behavioral Sciences, 18 BEHAV. SCI. & L. 5, 10 (2000).
361. Consider this description of the relevant Georgia state law: The law, described when it was adopted in 2006 as the nation's toughest restriction on sex offenders, prohibited them from living within 1,000 feet of schools, churches or any other place that children might congregate, including more than 150,000 school bus stops in the state. The ban applied even when a school, a church or the like opened in an area where an offender was already living.
362. Brenda Goodman, Georgia Justices Overturn a Curb on Sex Offenders, N.Y. TIMES, Nov. 22, 2007, at A26 (referencing GA. CODE ANN. § 42-1-15 (West Supp. 2009), which was held unconstitutional in Mann v. Georgia Department of Corrections, 653 S.E.2d 740, 745 (2007), to extent that it permits taking of property without just compensation).
363. N.J. STAT. ANN. § 2C:14-3 (West 2005).
364. Dena M. Gromet & John M. Darley, Restoration and Retribution: How Including Retributive Components Affects the Acceptability of Restorative Justice Procedures, 19 SOC. JUST. RES. 395, 421 (2006).
365. See Roger G. Noll & James E. Krier, Some Implications of Cognitive Psychology for Risk Regulation, 19 J. LEGAL STUD. 747, 771-79 (1990) (arguing that politicians will endorse policies because of public preference formed from miscalculations of risk).
366. Rachel E. Barkow, Federalism and the Politics of Sentencing, 105 COLUM. L. REV. 1276, 1292 (2005) ("[T]he public's fears of crimes will be fueled by the media, and they will perhaps place greater stock in incarceration policies that promise to deal with their fears in the most immediate fashion.").
367. Kevin M. Carlsmith, On Justifying Punishment: The Discrepancy Between Words and Actions, 21 SOC. JUST. RES. 119, 133 (2008).
368. For instance, Garland notes: Many of the laws passed in the 1990s-Megan's law, Three Strikes, sexual predator statutes, the reintroduction of children's prisons, paedophile registers, and mandatory sentences are designed to be expressive, cathartic actions, undertaken to denounce the crime and reassure the public. Typically these measures are passed amidst great public outrage in the wake of sensational crimes of violence, often involving a disturbingly archetypal confrontation between a poorly controlled dangerous criminal and an innocent, defenceless middle-class victim.
369. GARLAND, supra note 12, at 133.
370. Many of these sorts of ad hoc additions to criminal laws, generated in haste in response to a perceived public demand, criminalize actions that are already criminalized in the general sections of the criminal code and do so in ways that are inconsistent with the penalties set for the acts in the general codes, thereby generating considerable legal complexities.
371. See Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 HASTINGS L.J. 633, 637-38 (2005) (describing how pressure from interest groups leads to criminalization of offenses already covered by general provisions and arguing that redundant offenses make code interpretation confusing for public and law enforcement alike).
372. see also GARLAND, supra note 12, at 103-38 (describing recent change in correctional policy and factors behind these new penalogical aims).
373. To get a sense of the public choice position, see BRIAN Z. TAMANAHA, LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW 193-95 (2006). As Tamanaha remarks: "The primary objective of politicians is to ensure their own reelection."
374. Id. at 193.
375. Id. at 194.
376. Id. at 193-94 ("A great deal of legislation involves legally imposed and sanctioned transfers of wealth secured by well-financed and organized interest groups at the expense of hapless groups or the unorganized in society. Legislators are paid by beneficiaries of the legislation they produce.").
377. The eventual ability to transition from a legislative position to a more secure and better-paid position as a functionary in the network of organizations whose interests the legislator has served is important here. It provides security well past that experienced by legislators who have to be re-elected at intervals, and it also provides a monetary return that compensates the former legislator for a number of years receiving a merely adequate public salary. The classic example involves the legislator voting for ultra-expensive defense projects that would benefit the different defense contractors with plants in his legislative district.
378. Hindelang, supra note 139, at 108.
379. See, e.g., DOUGLAS HUSAK, OVERCRIMINALIZATION: THE LIMITS OF THE CRIMINAL LAW 16 (2008) (describing political parties' competition to appear hard on crime).
380. The commonly cited example of this kind of campaign is the "Willie Horton" ads that associated Governor Dukakis (who, at the time, was running for President against eventual winner George H.W. Bush) with the prison furloughing of a criminal who committed a murder while on release.
381. See generally STEVE TAKESIAN, WILLIE HORTON: TRUE CRIME AND ITS INFLUENCE ON A PRESIDENTIAL ELECTION (2002).
382. This fear of looking "soft on crime" has implications even outside of crime policy proper; that is, politicians may want to vote against crime bills because they are bad policy, or because of some other concern, such as constitutionality-but the fear of attack is too salient to allow such a vote. [A] federal officeholder who votes against a federal car-jacking law will likely be characterized by the officeholder's opponent as soft on crime. Although the officeholder might respond to the attack ad with a discussion of how the vote was motivated by federalism concerns, the officeholder may rightly be concerned that the defense may be too nuanced to be effective in a thirty-second sound bite. The officeholder may legitimately want to avoid the risk of having to expend scarce campaign funds in responding to such an ad altogether.
383. See, e.g., William Marshall, American Political Culture and the Failures of Process Federalism, 22 HARV. J.L. & PUB. POL'Y 139, 152 (1998).
384. For a general discussion of the upward spiral that characterizes American criminal law enactments, see Stuntz, supra note 85, at 509.
385. See also Erik Luna, The Overcriminal- ization Phenomenon, 54 AM. U. L. REV. 703 (2005) (discussing trend of increased criminalization as abuse of criminal justice system).
386. For a fuller account of the argument, see ROBINSON, DISTRIBUTIVE PRINCIPLES, supra note 5, at 175-210.
387. Robinson & Darley, Intuitions of Justice, supra note 1.
388. and Robinson & Darley, Utility of Desert, supra note 100.
389. Mechanical Turk is an online system run by Amazon that enables researchers (as well as other entities) to recruit individuals to perform various tasks for payment. The tasks that can be performed include, but are not limited to, surveys such as the one we conducted.
390. See AMAZON MECHANICAL TURK, https://www.mturk.com/mturk/welcome (last visited Oct. 18, 2010).
391. We also asked four other questions that pertained to similar issues. However, these were not affected by the manipulation in that they did not show any pre-post stimulation differences, so we do not discuss them further.
392. The options presented to subjects were as follows: Death, Life, 30 years, 26 years, 22.5 years, 19 years, 15 years, 13 years, 11 years, 9 years, 7 years, 6 years, 5 years, 4 years, 3 years, 2.5 years, 2 years, 1.5 years, 1 year, 10.5 months, 9 months, 7.5 months, 6 months, 5 months, 4 months, 3 months, 2 months, 6.5 weeks, 5 weeks, 3.5 weeks, 2 weeks, 11 days, 1 week, 4 days, 1 day, Liability but no punishment, No punishment.
393. See Column 4 of Appendix C.
394. Gregory Mitchell & Phillip E. Tetlock, Experimental Political Philosophy: Justice Judgments in the Hypothetical Society Paradigm, in EXPLORATIONS IN POLITICAL PSYCHOLOGY (Jon A. Krosnick & I-Chant A. Chiang eds.) (forthcoming May 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=912981.
395. Paired sample t-tests, all p <.001. Paired sample t-tests are used to determine whether there are statistically significant differences between the means from two separate variables, i.e., between the same subjects' responses to two separate questions.
396. See David C. Howell, STATISTICAL METHODS FOR PSYCHOLOGY 182 (4th ed. 1997).
397. One-sample t-test, t (58) = -5.02, p <.001.
398. One-sample t-test, t (58) = -3.72, p &.001.
399. Pearson correlation coefficients ranged from r = -.22 to r = -.37, all ps <.05, onetailed. The Pearson correlation coefficient indicates the strength and direction of any linear relationship between two variables; it ranges between -1 and +1, where -1 is a perfect negative correlation and +1 is a perfect positive correlation.
400. The cases were taken from an earlier study. See Robinson & Kurzban, supra note 88, at 1894-98 (presenting twenty-four cases used in study).
401. The sentences reported to subjects corresponded to the sentences that might commonly be given in the criminal justice system. In fact, for each case, the sentence described corresponded to the sentence handed down in a very similar actual case. The sentences also very closely matched the average sentences given by forty-six University of Pennsylvania undergraduates who participated in an earlier pilot study.
402. See supra note 108.
403. Paired sample t-tests, all ps <.001.
404. t (98) = 12.64, p <.001.
405. t (98) = 2.53, p <.02.
406. t (98) = 2.47, p <.02.
407. t (205) = 10.29, p <.001.
408. p <.001.
409. The comparison between the Study 2a baseline means and the Study 2b means is not ideal because the subjects were not randomly assigned to the studies. However, the two Mechanical Turk surveys were run only ten days apart, and analyses revealed that there were very few differences between the groups. The Study 2a subjects were significantly older than those in Study 2b, but there were no other significant differences across other demographic variables, including gender, political views, annual income, belief in God, and highest education completed. Critically, there were no significant differences between the sentences handed out by the Study 2a subjects and those handed out by the Study 2b highdisillusionment group, and there was only one significant difference between these two subgroups on the post-disillusionment questions. We conclude that it is highly unlikely that a cohort difference compromises the comparison between the Study 2a baseline and the Study 2b subjects.
410. Where two cells on a row do not share the same letter, their values are statistically different. That is, if three adjacent cells have the superscripts: "a," "a,b," "b," it means that the first cell is significantly different from the third cell, but that the second cell is not significantly different from either the first or third cell.
411. The reverse is also possible: Distorted media coverage may create the impression that the criminal justice system is deviating from desert when it is not. This is a potential problem especially when, as is currently the case, the media tend to focus on the absolute amount of punishment imposed rather than upon the relative amount of punishment among different cases. That is, when a sentence is reported in isolation, which is the traditional news coverage approach, it may seem inappropriate, yet an examination of a fuller collection of cases may suggest that it is indeed just the sentence this offender deserves, given his relative blameworthiness and the spread of the punishment continuum. A useful part of the agenda for future research may be to understand how to encourage less distorting media reporting. Some of this will come naturally if the system moves formally to desert as a distributive principle-something likely to promote public discussion and improve public understanding of the nature of shared intuitions of justice and the central role of relative blameworthiness. However, special efforts to improve news reporting may be a good investment for the long-term success of the criminal justice system.
412. Indeed, especially if the system formalizes and publicizes the importance of doing justice, such as by adopting desert as the system's distributive principle in the way that the Model Penal Code drafters have done, deviations from desert will attract more press attention, not less.
413. See Robinson & Darley, Utility of Desert, supra note 100, at 495-96 (discussing impact of doing injustice on reputation of criminal justice system).
414. For an analysis of the various doctrines by which the criminal justice system regularly and intentionally deviates from desert and a critique of the justifications offered in support of each doctrine of deviation.
415. see generally ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 23.
416. See generally ICEK AZJEN & MARTIN FISHBEIN, UNDERSTANDING ATTITUDES & PREDICTING SOCIAL BEHAVIOR (1980) (discussing how measures of attitude and intention can be used to predict behavior, correspondence between measures of attitude and measures of behavior, and application of measures in six case studies of socially relevant behavior).
417. Ajzen and Fishbein's "theory of reasoned action" originated the term "behavioral intention." This theory has been critical in shedding light on the conditions under which attitudes predict behavior.
418. See id. at pt. 1 (outlining theory of reasoned action, including construct of behavioral intention as way to predict behavior from attitudes).
419. Much research originating from this theory (and leading up to it) has corroborated the importance in predicting behavior of asking questions that gauge people's intentions to perform the specific behaviors of interest.
420. See generally Icek Ajzen, Attitudes, Traits, and Actions: Dispositional Prediction of Behavior in Personality and Social Psychology, in 20 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 1, 1-63 (1987) (providing theoretical treatment of when and how general dispositions predict specific behaviors).
421. ALICE H. EAGLY & SHELLY CHAIKEN, THE PSYCHOLOGY OF ATTITUDES 155-218 (1993) (providing integrative review of accumulated research on attitudes including their relation to behavior).
422. MARTIN FISHBEIN & ICEK AJZEN, BELIEF, ATTITUDE, INTENTION, & BEHAVIOR: AN INTRODUCTION TO THEORY & RESEARCH (1975) (presenting conceptual framework for theory of reasoned action and model of behavior prediction based on argument that behavioral intention is function of attitude toward specific behavior and subjective norms).
423. A.R. Davidson & J.J. Jaccard, Variables that Moderate the Attitude-Behavior Relation: Results of a Longitudinal Survey, 37 J. PERSONALITY & SOC. PSYCHOL. 1364, 1364-76 (1978) (investigating how attitudes predict specific behaviors of having children and using oral contraceptives, showing that closer correspondence between attitude measures and behaviors correlates to stronger predictive relation).
424. See Paul H. Robinson, Robert Kurzban & Owen D. Jones, The Origins of Shared Intuitions of Justice, 60 VAND. L. REV. 1633 (2007) (arguing that matters on which there is high agreement across demographics cannot easily be manipulated, whether due to human predisposition to holding such intuitions or to universal social learning conditions).
425. See Robinson & Darley, Intuitions of Justice, supra note 1, at 29-31 (arguing that criminal justice system will command more deference in borderline cases if perceived to be morally authoritative).
426. Robinson & Darley, Utility of Desert, supra note 100, at 475-77 (discussing how criminal law's moral authority has effect in cases where ambiguity exists as to whether conduct is wrong).
427. As previously mentioned, a possible criticism of the Study 2a design is that it introduces a demand to respond in ways that the subject perceives that the researcher expects. See supra Part IV.B. Study 2a is more vulnerable to this criticism than is Study 2b because it used a within-subjects design. The lack of face-to-face contact between the researcher and subject diminishes the concern, although perhaps not entirely. But the results of Study 2b, which was performed between subjects, cast more doubt on the existence of any such demand effect. Subjects, of course, perceived a relation between the two parts of Study 2b, but it is unlikely that this exerted pressure on them to respond in a particular way. The expected effect was not necessarily obvious to subjects in the disillusionment condition, since the sentences were both overly punitive and overly lenient. We thus think it unlikely that subjects were able to reliably divine the hypothesis under investigation. Indeed, one potential hypothesis they might have entertained, entirely contrary to the one that was supported, is that the researchers wanted them to respond in more moral and law-abiding ways in the high-disillusionment condition, since a reliance on personal morality comes to the fore when the legal system is doing a poor job. Finally, the manipulation was also produced by allowing whatever differences existed between subjects' sentences and the law's to emerge naturally, and it did not rely on any explicit statements about the quality of the legal system by the researchers; subjects had to draw their own inferences about this issue. In sum, we conclude that the worry about "experimenter demand" is insubstantial.
428. Harold G. Grasmick & Donald E. Green, Legal Punishment, Social Disapproval and Internalization as Inhibitors of Illegal Behavior, 71 J. CRIM. L. & CRIMINOLOGY 325, 329 (1980) (describing research procedures).
429. Id. at 330 (explaining research procedures).
430. Id. at 334.
431. See Herbert Jacob, Deterrent Effects of Formal and Informal Sanctions, 2 L. & POL'Y Q. 61, 64-67 (1980) (presenting outcomes of Illinois phone survey comparing effects of perceived cost of violating law and perceived legitimacy of law on imputed compliance).
432. Id. at 70 (presenting results regarding legitimacy of law and compliance).
433. Id. at 70.
434. see also Robert F. Meier & Weldon T. Johnson, Deterrence as Social Control: The Legal and Extralegal Production of Conformity, 42 AM. SOC. REV. 292, 301 (1977) (stating that "[t]he belief that marijuana use is immoral functions to inhibit marijuana use," while "legal threat shows a measurable, but essentially trivial influence on marijuana use/nonuse").
435. Matthew Silberman, Toward a Theory of Criminal Deterrence, 41 AM. SOC. REV. 442 (1976).
436. Id. at 457.
437. See Janice Nadler, Flouting the Law, 83 TEX. L. REV. 1399 (2005) (providing experimental evidence in support of idea that perceived legitimacy of one law influences compliance with other laws).
438. Id. at 1410-15 (discussing results of Experiment 1).
439. Id. at 1416-24 (presenting methodology and findings of Experiment 2).
440. Erich J. Greene, Effects of Disagreements Between Legal Codes and Lay Intuitions on Respect for the Law (June 2003) (unpublished Ph.D. dissertation, Princeton University) (on file with Mudd Library, Princeton University).
441. Id. at iv.
442. Id. at v.
443. Nadler's second study, on juror nullification, does investigate cooperation, but its results are not as easily interpreted as those of her first study, nor are they easily assimilated with our own results. The greater proportion of "Not Guilty" verdicts in the unjust condition were accompanied by diminished ratings of the defendant's guilt.
444. Nadler, supra note 223, at 1424-25.
445. This suggests that the unjust prime (the defendant who got off) may have produced juror nullification through shifting subjects' thresholds for criminal culpability, rather than through affecting their perceptions of the moral credibility of the criminal justice system.
446. Elizabeth Mullen & Janice Nadler, Moral Spillovers: The Effect of Moral Violations on Deviant Behavior, 44 J. EXPERIMENTAL SOC. PSYCHOL. 1239 (2008).
447. See id. at 1243-45 (analyzing results of two studies).
448. See Eric A. Posner, Law and Social Norms: The Case of Tax Compliance, 86 VA. L. REV. 1781, 1782 (2000) (posing problem of explaining tax compliance).
449. See id. (discussing alternative explanation for tax compliance).
450. Karyl A. Kinsey, Deterrence and Alienation Effects of IRS Enforcement: An Analysis of Survey Data, in WHY PEOPLE PAY TAXES: TAX COMPLIANCE AND ENFORCEMENT 259 (Joel Slemrod ed., 1992) (presenting results of study of effects of enforcement contacts on sanctions perceptions, perceived fairness of tax laws, and intentions of future compliance with tax laws).
451. Id. at 276, 282 (discussing effects of vicarious enforcement contacts on intention to comply in future).
452. Nadler, supra note 223, at 1409-10.
453. DAVID B. ROTTMAN, RANDALL HANSEN, NICOLE MOTT & LYNN GRIMES, INTERUNIVERSITY CONSORTIUM FOR POLITICAL AND SOCIAL RESEARCH, PUBLIC OPINION ON THE COURTS IN THE UNITED STATES, 2000 (2000), http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/3864?archive=ICPSR&q=public+opinion+on+the+courts+[hereinafter ROTTMAN DATASET] (search "All Fields" for "ICPSR03864").
454. Sample characteristics: Gender: Male, 44%, female, 56%; Race/Ethnicity: White, not Hispanic, 52%, African American, 26%, Hispanic, 20%, other minority, 2%; Age: Average = 43 years; Education: Less than high school, 9%, high school graduate, 29%, some college, 35%, college graduate, 27%; Household Income: $20,000 or less, 26%, $20,001 to $40,000, 30%, $40,001 to $80,000, 30%, $80,000 or more, 14%; Marital Status: Married, 50%, living together but not married, 5%, single, never married, 22%, separated, divorced, or widowed, 23%.
455. See ROTTMAN ET AL., Codebook and Data Collection Instrument, in ROTTMAN DATASET, supra note 237, at 1, 31-32 (describing sample characteristics).
456. The sampling strategy adopted by IUPOL corrected for the common problem of underrepresentation of racial and ethnic minorities in telephone surveys by oversampling African Americans and Hispanics. The survey was administered in English and Spanish. Additionally, the IUPOL took a number of steps to ensure data quality. First, interviewers received at least four hours of training. Most of the interviewers had prior experience conducting telephone surveys. Second, a widely accepted telephone survey sampling technique, random-digit-dialing with quotas, was used to contact potential respondents. Finally, selected telephone numbers were called repeatedly until an interview was successfully completed. Telephone numbers were replaced if the individual who was contacted by the research staff refused to participate on three separate occasions, if the number was disconnected or no longer in service, or if the potential subject was not contacted after twenty attempts.
457. See ROTTMAN ET AL., Description, in ROTTMAN DATASET, supra note 237, at iv (describing survey methodology).
458. See ROTTMAN ET AL., Codebook and Data Collection Instrument, in ROTTMAN DATASET, supra note 237, at app. A ("Data Collection Instrument") (reproducing ques- tions asked of subjects).
459. A common problem with using telephone survey data is that some respondents do not answer every question. Missing cases were replaced using Similar Response Pattern Imputation (SRPI). SRPI is a technique that is widely used to impute missing cases. Using a series of matching variables, SRPI searches the data file of interest for "donor cases." Once a similar response pattern is found, the donor's score is used in place of the missing value. When compared to other methods for handling missing cases (e.g., mean imputation and listwise deletion), research shows that SRPI is a superior technique.
460. See Gerhard Gmel, Imputation of Missing Values in the Case of a Multiple Item Instrument Measuring Alcohol Consumption, 20 STAT. MED. 2369, 2379 (2001) (showing that SRPI, or "hot-deck imputation," is superior relative to other available procedures).
461. Subsample characteristics: Gender: Male, 49%, female, 51%; Race/Ethnicity: White, not Hispanic, 56%, African American, 24%, Hispanic, 17%, other minority, 3%; Age: Average = 41 years; Education: Less than high school, 5%, high school graduate, 22%, some college, 37%, college graduate, 36%; Household Income: $20,000 or less, 17%, $20,001 to $40,000, 24%, $40,001 to $80,000, 41%, $80,000 or more, 18%; Marital Status: Married, 56%, living together but not married, 4%, single, never married, 19%, separated, divorced, or widowed, 21%; Role in criminal court case: Juror, 69%, witness, 31%. When compared to the full sample of survey respondents, the subsample consists of slightly more females, individuals who have received higher levels of formal education, and those with higher household incomes. In terms of race/ethnicity, age, and marital status, the two samples are very similar.
462. ROTTMAN ET AL., Codebook and Data Collection Instrument, in ROTTMAN DATASET, supra note 237, at app. A, 1 ("Data Collection Instrument").
463. Various statistical techniques are used by behavioral and social scientists to evaluate the psychometric properties of multi-item summated scales. To assess the validity of the moral credibility scale, the three survey items are entered into an exploratory factor analysis. This technique is used to determine whether the three survey items tap into the same underlying construct. The factor structure that emerges indicates that the scale is unidimensional (eigenvalue = 2.07; factor loadings >.80).
464. For technical details on factor analytic techniques, see generally MARJORIE A. PETT, NANCY R. LACKEY & JOHN L. SULLIVAN, MAKING SENSE OF FACTOR ANALYSIS (2003) and BRUCE THOMPSON, EXPLORATORY AND CONFIRMATORY FACTOR ANALYSIS (2004).
465. To assess the scale reliability, two common measures of internal consistency are used. The results of these procedures confirm that the scale possesses a high level of reliability (Cronbach's alpha =.78; mean inter-item correlation =.54).
466. For a discussion of coefficient alpha and reliability theory, see generally Jose M. Cortina, What Is Coefficient Alpha? An Examination of Theory and Applications, 78 J. APPLIED PSYCHOL. 98 (1993). In sum, the evidence indicates that the moral credibility scale has strong psychometric properties.
467. ROTTMAN ET AL., Codebook and Data Collection Instrument, in ROTTMAN DATASET, supra note 237, at app. A, 8 ("Data Collection Instrument").
468. The linear statistical techniques used in this section are sensitive to the distributional characteristics of the variables included in the analysis. When variable scores resemble a normal distribution (or a bell-shaped curve), we gain confidence that our estimates are unbiased. Statistical tests show that the score distributions for the moral credibility and willingness to defer variables are symmetric (or bell-shaped). Thus, the results from the linear statistical models will not be adversely affected by displeasing variable attributes.
469. The study used two-tailed tests of statistical significance. The two-tailed test, also known as a nondirectional test, does not require that the direction of the research hypothesis (i.e., positive or negative) be specified. The one-tailed test is a directional test, commonly used when the research hypothesis is directional in nature. Both tests are appropriate in a variety of situations; however, the two-tailed test requires that a higher threshold be met to achieve statistical significance.
470. The respondent characteristic variables were coded as follows: gender (1 = male respondent, 0 = female respondent), age (in years), race (1 = white, non-Hispanic respondent, 0 = racial and/or ethnic minority respondent), education (1 = less than fifth grade to 9 = graduate or professional degree), household income (1 = less than $10,000 to 10 = more than $120,000), and marital status (1 = married respondent, 0 = otherwise). According to established guidelines, the sample is sufficiently large to estimate a six-variable OLS model to detect medium effect sizes.
471. See Samuel B. Green, How Many Subjects Does It Take To Do a Regression Analysis?, 26 MULTIVARIATE BEHAV. RES. 499, 503 (1991) (showing that power-based analyses suggest that seven-variable regression model consists of minimum of 102 cases to show medium effect sizes).
472. Finally, we evaluated the intercorrelations between the independent variables. When correlations are high, say above.80, harmful levels of collinearity may result in biased parameter estimates.
473. See Mark H. Licht, Multiple Regression and Correlation, in READING AND UNDERSTANDING MULTIVARIATE STATISTICS 45 (Laurence G. Grimm & Paul R. Yarnold eds., 1995) (stating that correlations between independent variables in excess of.80 should be considered "very problematic").
474. Our investigation revealed that none of the bivariate correlations between the independent variables exceeded an absolute value of.41. Results from the model diagnostic tests strongly suggested that collinearity was not a threat. For example, the estimates from the tolerance tests exceed.70, which is considered a conservative threshold in the social and behavioral sciences.
475. The formal statistical interpretation of the moral credibility effect is as follows: Each standard deviation increase in the moral credibility scale corresponds to a.265 standard deviation increase in the willingness to defer to the criminal justice system in the future.
476. A number of model statistics can be used to evaluate the fit of an OLS regression equation. The measure of joint correlation (or F-test) for the model presented in Table 8 indicates that the group of independent variables reliably predicts willingness to defer to the criminal justice system in the future (F = 2.91, significance level =.01). The coefficient of multiple determination (or R2) shows that the model explains 13% of the variation about the dependent variable, willingness to defer. We explored whether other variables outside the scope of the theory being tested here also influence whether experienced respondents are willing to assist legal authorities during the criminal court process. Prior research has shown that citizens who perceive police processes as procedurally just report a greater willingness to participate in crime prevention programs.
477. See Michael D. Reisig, Procedural Justice and Community Policing-What Shapes Residents' Willingness To Participate in Crime Prevention Programs, 1 POLICING: J. POL'Y & PRAC. 356, 364 (2007) (discussing results of survey showing that people who believe police exercise authority fairly are more willing to participate in crime preventon).
478. Based on prior research, we reason that perceptions of procedural justice regarding court processes may also influence willingness to serve as a juror or witness in a criminal court case. When entered into the equation featured in Table 8, the procedural justice scale (a 7-item summated scale, Cronbach's alpha =.889) was a significant predictor (standardized regression coefficient =.303, significance level =.003).
479. A potential limitation of the study concerns the use of a non-random subsample to estimate a behavioral outcome. Statistical problems arise when membership in the subsample is not independent from the outcome measure. When this is the case, selection bias becomes a threat. The most frequently employed approach for dealing with sample selection bias is Heckman's two-step correction.
480. See Richard A. Berk, An Introduction to Sample Selection Bias in Sociological Data, 48 AM. SOC. REV. 386, 393-96 (1983) (providing empirical application of Heckman's two-step correction using citizen survey data).
481. James J. Heckman, Sample Selection Bias as a Specification Error, 47 ECONOMETRICA 153, 156-60 (1979) (providing formal demonstration of how two-step Heckman estimator can correct for sample selection bias).
482. This two-step modeling process has several requirements, one of which is the inclusion of exclusion restrictions in the first-stage model (i.e., variables that predict the selection outcome in the first-stage model but are not related to the dependent variable in the second-stage model). Unfortunately, we were unable to construct a first-stage model that included exclusion restrictions that predicted membership in the subsample (i.e., recent personal or vicarious experience as a juror or witness). Accordingly, the extent to which sample selection bias was a problem in this study remains unknown.
483. We assessed whether the correlation between moral credibility and willingness to defer to the criminal justice system differed between the two groups that make up our subsample-jurors and witnesses. We found that the estimates for jurors and witnesses were nearly identical. Grouping jurors and witnesses into a single subsample increases statistical power. Given the consistent bivariate relationship between the two key variables across these two groups, this approach is empirically justifiable.
484. Several recent studies have used legal compliance with soft crimes and cooperation with police scales and may prove useful in future studies on the effects of moral credibility.
485. See Michael D. Reisig, Jason Bratton & Marc G. Gertz, The Construct Validity and Refinement of Process-Based Policing Measures, 34 CRIM. JUST. & BEHAV. 1005, 1014 (2007) (using compliance scale consisting of six minor offenses: "made a lot of noise at night," "bought something you thought might be stolen," "drank alcohol in a place you are not suppose [sic] to," "smoked marijuana," "illegally disposed of trash and litter," and "broke traffic laws").
486. Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 L. & SOC. REV. 513, 541 (2003) (using compliance scale items that asked respondents whether they followed rules about seven types of behavior: "where to park a car legally," "how to legally dispose of trash and litter," "not making noise at night," "not speeding or breaking traffic laws," "not buying possible stolen items on the street," "not taking inexpensive items from stores or restaurants without paying," and "not using drugs such as marijuana").
487. See supra Section B of Introduction.
488. See ROBINSON, DISTRIBUTIVE PRINCIPLES, supra note 5, at 21 (discussing reason to be skeptical of crime control effectiveness of measures that deviate from desert).