Sherry F. Colb

Implications of the "Holier-than-Thou Effect" For Criminal Justice

By SHERRY F. COLB


Monday, May 11, 2009

Last week, the New York Times reported on a phenomenon known as the "holier-than-thou effect." When people were asked to predict how they would react to a moral dilemma under a particular set of circumstances, they typically overestimated the likelihood that they would make the right choice (e.g., stop to help others in distress). In predicting how others would react, however, people came much closer to the truth and thereby accurately estimated not only how others would behave, but also (albeit inadvertently) how they themselves would perform in the situation.

These findings could have important implications for how our legal system should approach criminal punishment.

The Goals of the Criminal Law

Theorists of criminal justice typically cite four reasons for punishing people who commit crimes. One is retribution, the moral desire to make a person who has acted wrongfully suffer and thus pay for his mistakes. Within retributive theory, we can ask, for example, whether a person who rapes but does not kill a child deserves to be executed. In conducting proportionality review under the Eighth Amendment ban on cruel and unusual punishments, the U.S. Supreme Court, in Kennedy v. Louisiana, answered this particular question in the negative.

The retributive approach to crime is, in some sense, the purest. Rather than utilizing the apprehended criminal (and his penalty) as a means of shaping others' behavior, the retributivist examines the content of the criminal's character, as manifested by his conduct, and decides what the proper penalty would be, putting aside instrumental considerations.

In contrast, a second common reason for punishment is deterrence, both general and specific. In general deterrence, penalties aim to scare aspiring criminals, as a group, into changing their evil ways. At best, general deterrence prevents people from offending before anyone has had to suffer punishment – that is, the law on the books chills misconduct without having to be enforced. In reality, of course, people do offend and thereby "test" the threat of the criminal law, and their penalties then serve to emphasize, for others, the downside risk of crime.

Specific deterrence operates at the level of the particular person receiving the punishment; by suffering the consequences of his actions, he learns for the future that "crime doesn't pay" and avoids reoffending.

A third objective of criminal punishments is to incapacitate offenders and thereby restrain them from committing further crimes. In the case of imprisonment, for example, a person who is living inside a penitentiary does not have the same opportunities to engage in anti-social conduct as he would on the outside. A sentence of death, once executed, ensures that the offender can no longer hurt anyone. Accordingly, some juries consider "future dangerousness" as an aggravating factor when deciding whether to sentence a killer to death. For extremely dangerous offenders, a prison term alone might not be sufficient to prevent them from killing again.

Fourth, criminal punishment may direct itself toward rehabilitating offenders. The phrase "house of corrections" and the word "reformatory" reference this objective and imply that a person who commits a wrongful act can be changed into the sort of person who would no longer do so. Rehabilitation might involve therapy or behavioral conditioning (A Clockwork Orange explores the potential dark side of this approach), but it treats criminality as a pathology or defect that is subject to reform.

Retribution's Dominance

In the United States, retribution currently dominates over the other objectives within our criminal justice system. Prison sentences are extremely long here, by contrast to those imposed in other parts of the world, and prison conditions are deplorable and include gang violence, rape and the spread of serious illness.

Though such harshness could be a feature of general and specific deterrence, the almost-complete lack of rehabilitative programs within prison (coupled with the ubiquity of prison rape) suggests that a forward-looking attempt to reduce criminality is not an important part of the prison equation in the U.S.. People who are suffering brutalization and spending years away from gainful employment cannot be expected to rejoin law-abiding society and make positive contributions to their respective communities.

What's Wrong With Retribution?

In one respect, the retribution objective shows the greatest respect for the individual and his character. Rather than utilize the convicted criminal to send a message, or treat him as the object of pathology that requires behavioral or medical intervention, a retributive approach takes the criminal actor seriously as an autonomous person and punishes him in the way that he deserves. A problem arises, however, if our assumptions about individual autonomy and responsibility are incorrect, and the holier-than-thou effect suggests that they might be.

When we empathize with a person in whose shoes we can easily imagine ourselves, we sometimes say, "There but for the grace of God go I." This expression captures the notion that, at least in some cases, we understand that we cannot take the credit for the benefits that we enjoy. Whether we attribute our good circumstances to God's grace or to luck, we acknowledge that something outside of our own control and responsibility must be credited.

This empathic approach can usually be found on the political left. People interested in focusing on the "root causes" of anti-social behavior point out that a person who has suffered a rotten childhood is more inclined to turn to criminal deviance than someone whose childhood was uneventful, and they argue that the law ought to take this into account.

Though reflecting a laudable empathy toward our fellow human beings, such "root cause" analysis, on occasion, can strike many on the right (and even in the middle or left) as misguided. When a terrorist blows up a school, for instance, the understood proper reaction is outrage, not an attempt to identify with the terrorist. Indeed, when someone argues that "I might be a terrorist if I grew up under the same conditions as the person who blew up the school," the ready responses are that (a) most people who grew up under those conditions did not become terrorists, and (b) one must deal with a person as he is, and it is not terribly helpful in strategizing a response to specific violence to observe that its perpetrator might have been a good person if his last seventeen years had gone differently.

By contrast, the holier-than-thou effect tells us something far more practical than would a close analysis of "root causes." It exposes the fact that we, as we now exist in our current incarnations, having experienced our actual childhoods, are far more responsive to context in making our moral choices than we are to enduring character traits (developed over the years). If a context invites Bad Samaritan behavior (i.e., ignoring a person in need of help) or worse, in other words, even those of us who think we are good and think we would do the right thing will predictably fall short of our own expectations. We might strongly believe that we would not succumb to temptation (of whatever variety), but we are – in all likelihood – mistaken.

To acknowledge the holier-than-thou effect, then, is to begin to understand the somewhat counterintuitive reality that when we are not inhabiting a situation, we are ill-equipped to judge how we would respond to it. To give one example, the behavior of our soldiers in Abu Ghraib, given the orders they received and the circumstances in which they found themselves, was predictable. Indeed, Professor Philip Zimbardo essentially predicted it in his 1971 prison simulation experiment at Stanford University, during which ordinary students grossly abused their randomly assigned roles as "prison guards" to their peers.

Consequences for Criminal Justice of the Holier-than-Thou Effect

One might read the holier-than-thou effect as counseling anarchy – arguing that we cannot punish people for their misdeeds, because they are simply automatons subject to the directives of circumstance. I would not support such an approach, however, in part because the manner in which the legal system handles misconduct is itself an important factor in shaping human behavior. An absence of criminal sanctions could therefore produce lawlessness. Being supremely aware of the context-sensitivity of human beings thus requires greater, rather than less, care in crafting our responses to harmful acts.

The holier-than-thou effect might, however, help us to see that many of the people who are languishing in prison are not "worse" people than their law-abiding counterparts. Indeed, we might have behaved as they did under the "right" circumstances. This view does not mean that we cannot punish criminals, but it does call into question the conclusion that most convicts are beyond redemption and should be, in effect, written off with long, life-destroying prison sentences. Indeed, the situation-dependent nature of behavior counsels against surrounding a person convicted of wrongdoing with other criminals for long stretches of time, during which he will be almost entirely cut off from what lawful behavior in civilized society looks like. Shorter and less brutal sentences, coupled with humane and educational transition opportunities for former prisoners, could yield better results for everyone.

To take into account the holier-than-thou effect might also facilitate the forgiveness necessary to our ability to think logically about the problem of crime. If we are filled with rage and hatred (which are often themselves a very understandable response to crime), it will be more difficult for us to imagine, and thus to allow, that someone who committed a bad act in the past might soon become (or might even have already been) a contributing member of society.

As of early 2008, the United States had the highest documented per capita rate of incarceration in the world. More than one in every one hundred adults here were in prison. Of Americans in prison, between twenty and forty percent were estimated to be infected with Hepatitis C virus, and the prevalence of prison rape contributed to a high rate of HIV infection as well. If we are able to say of at least some of these offenders that "There but for the grace of God go I," we might begin to consider the changes necessary to fix our broken system.



Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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