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Implications of the “Holier-than-Thou Effect”

May 11, 2009

writ.news.findlaw.com : Implications of the “Holier-than-Thou Effect” For Criminal Justice.
By Sherry F. Colb , Professor of Law and Charles Evans Hughes Scholar at Cornell Law School

Excerpts:

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.

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.

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