Condemnation

1. Condemnation Exploring the Role of Punishment’s “Expressive Function” In Legal Decision Making

2. Overview • The legal system includes civil and criminal institutions. • The criminal justice system’s concern with punishment distinguishes it from civil institutions. • Can punishment be used to predict the appropriate institution to apply?

3. Civil and Criminal Institutions Special rights are afforded in the criminal justice system because legal punishment is at stake.

4. What is punishment? • Hard Treatment • inflicted for a violation of legal rules • on the actual or supposed violator of the rules • imposed by people other than the violator • who have the authority to do so under the rules of the legal system. (H.L.A. Hart, 1968; Feinberg & Gross, 1995)

5. What is punishment? (cont’d) • Punishment expresses the community’s condemnation (Hart, 1958; Feinberg, 1995). What is meant by condemnation? • An expression of “resentment and indignation,” fused with disapproving judgment (Feinberg, 1995).

6. Emotion fused with disapproving judgment Consider a mobster who “punishes” a snitch who testifies against him by murdering the snitch. We might say that the mobster feels resentment, hatred, etc. toward the snitch. But this is not the condemnation that the criminal justice system expresses when it punishes. We must add a measure of judgment.

7. Emotion fused with disapproving judgment Consider Dirty Harry, a police officer who punishes suspects through the use of force (often deadly). His actions may express the same feelings of resentment, hatred, etc. that the mobster’s actions expressed. We have also added a measure of judgment—if Dirty Harry’s punishment is only imposed on lawbreakers. But we must add a bit more judgment to approximate the sort of punishment imposed by the criminal justice system.

8. Emotion fused with disapproving judgment Arguably the criminal justice system imposes punishment that expresses the same emotions referred to earlier, but incorporates restraining judgment (e.g., proportional punishment directed only at lawbreakers, in contrast to Dirty Harry and Capone).

9. Condemnation

10. The Discriminative Function of Condemnation • The criminal justice system incorporates the retributive concept of guilt. • It follows that condemnation is expressed toward a person only if she is guilty. • Note that it is an empirical question whether condemnation is actually expressed toward the guilty.

11. Hard Case No. 1: Legal Insanity • Insanity is an affirmative defense. • No punishment if successful. • There may still be a deprivation of liberty, however, through the institution of civil commitment. • Note that this deprivation of liberty is not punishment, even though it follows a violation of the criminal law.

12. What factors predict judgments in insanity cases? • Attitudes toward the insanity defense (e.g. Louden & Skeem, 2007; Poulson et al., 1997). • The type of mental illness at issue (e.g. Roberts et al., 1987). • The severity of the crime (e.g. Bailis et al., 1995). • The availability of different verdict options (GBMI) (e.g. Poulson, 1990).

13. Can condemnation be used to predict judgments in insanity cases?

14. Condemnation and Judgments in Insanity Cases • H1: Condemnation scores will differ across cases based on different mental illnesses. • H2: Condemnation scores will be higher when the charged offense is more severe. • H3: Condemnation scores will predict verdict decisions, and attitudes will have no independent contribution to the prediction model.

15. Method • 150 undergraduate students completed a packet that included: • Four hypothetical case scenarios (vignettes) • A measure of insanity defense attitudes • Sets of dependent measures for each hypothetical case

16. Method • Vignettes described assaults committed by defendants suffering from: Seizure disorder (low condemnation) PTSD/battered child syndrome Paranoid schizophrenia Antisocial personality disorder • (high condemnation)

17. Method • The vignettes varied between groups by severity of harm (assault causing minor injuries vs. fatal injuries) and the presence/absence of the GBMI verdict option.

18. Method • Modified version of Hans (1986) Insanity Defense Attitudes Scale (16 items rated on 7-point Likert scale) • E.g. “The insane should be treated rather than punished.” • “Punishment just does not work on the insane.” • α = .794 • Pearce (2008) Condemnation Scale (23 items rated on 7-point Likert scale) • E.g. “I feel hatred toward the defendant.” • “Sentencing the defendant to prison would balance society’s need to express revenge toward him with rational judgment”

19. Results • The reliability of the condemnation scale was good for all vignettes: • Seizure disorder: α = .936 • PTSD/battered child syndrome: α = .950 • Paranoid schizophrenia: α = .944 • Antisocial personality disorder: α = .940

20. Main Effect for Diagnosis (Summary of main effects: Seizure < schiz = PTSD < Antisoc.)

21. Main Effect for Severity Summary of main effect: assault < homicide

22. Results • Condemnation scores were often predictive of verdict decisions, and attitudes had only a limited independent contribution to the models. • Due to a wide variety in verdict frequency patterns across diagnoses, separate logistic regression analyses were conducted for each diagnosis.

23. Seizure Disorder Note: Constant-only model accuracy = 91.8% The classification table shows the results of a model that includes insanity defense attitudes and condemnation as predictors

24. Seizure Disorder Note: Constant-only model accuracy = 91.8%

25. Seizure Disorder

26. Seizure Disorder

27. Seizure Disorder

28. Seizure Disorder A word about logistic regression: the best measure of affect size is the odds ratio. This odds ratio (1.16) means that for each single-point increase on the condemnation scale, the odds of obtaining a guilty verdict (as opposed to an NGRI verdict) increase by 16%.

29. Posttraumatic Stress Disorder Note: Constant-only model accuracy = 58.3%

30. Posttraumatic Stress Disorder Note: Constant-only model accuracy = 58.3%

31. Posttraumatic Stress Disorder

32. Posttraumatic Stress Disorder

33. Paranoid Schizophrenia Note: Constant-only model accuracy = 72.6%

34. Paranoid Schizophrenia Note: Constant-only model accuracy = 72.6%

35. Paranoid Schizophrenia

36. Paranoid Schizophrenia

37. Antisocial Personality Disorder • 97% of participants returned a verdict of “guilty.” Condemnation scores could not predict verdicts better than the constant-only model. (X2 = 0.834, p = .361) But . . . • When GBMI was a verdict option, 2 participants returned verdicts of NGRI, 13 of GBMI, and 61 of guilty.

38. Antisocial Personality Disorder (GBMI vs. Guilty) Note: Constant-only model accuracy = 82.4%

39. Antisocial Personality Disorder (GBMI vs. Guilty) Note: Constant-only model accuracy = 82.4%

40. Antisocial Personality Disorder (GBMI vs. Guilty)

41. Antisocial Personality Disorder (GBMI vs. Guilty)

42. Discussion • Condemnation scale seems to be a reliable measure. • Condemnation scores differ across diagnoses in the expected manner. • Higher condemnation scores are associated with more severe crimes. • Condemnation can predict verdicts.

43. Hard Case No. 2: Young Offenders • Juvenile justice systems were formed to rehabilitate young offenders. • Generally, they are not punitive— • --which means that rights and procedures may differ. • Certain juveniles are eligible to proceed in either system.

44. What factors predict charging decisions involving juveniles? • Clinicians asked to make recommendations tend to emphasize dangerousness and treatment amenability, but de-emphasize accountability in their reports to the court (Salekin et al., 2001)

45. Can condemnation be used to predict juvenile charging decisions?

46. Condemnation and Juvenile Charging Decisions • H1: Condemnation scores will be significantly higher when the youth’s offense is severe and premeditated • H2: Condemnation scores will predict charging decisions, such that higher scores will be associated with decisions to try the youth in criminal court

47. Method • 235 attorneys (90 defense attorneys, 134 prosecutors) completed a packet that included: • One of four vignettes • Pearce (2008) condemnation scale (14 items, α = .794) • Vignettes described assaults by youths • The vignettes varied between groups based on the severity of the assault and whether the assault was premeditated

48. Results • H1: There was no interaction between offense severity and premeditation as they relate to condemnation scores, no main effects for severity or premeditation. • H2: Binary logistic regression analysis indicates that condemnation scores are predictive of charging decisions

49. Juvenile Court Charging Decisions Note: Constant-only model accuracy = 66.2%

50. Juvenile Court Charging Decisions Note: Constant-only model accuracy = 66.2%