The Criminogenic Effects of Damaging Criminal Law’s Moral Credibility

47 Pages Posted: 1 Feb 2021 Last revised: 16 Aug 2021

See all articles by Paul H. Robinson

Paul H. Robinson

University of Pennsylvania Law School

Lindsay Holcomb

University of Pennsylvania Law School - Student/Alumni/Adjunct

Date Written: July 16, 2021

Abstract

The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby loses crime-control effectiveness. These crime-control benefits, together with an analysis of the sometimes-disqualifying weaknesses of alternative distributive principles such as general deterrence and incapacitation of the dangerous, suggest that maximizing the criminal law’s moral credibility is the best distributive principle available. Critics have offered a range of objections to this proposal, which are here considered and answered.

Keywords: Empirical desert, blameworthiness proportionality, legitimacy, coercive crime control, normative crime control, empirical studies, distributive principles, community norms, code-community conflicts, natural experiments, vigilantism, legitimacy-compliance dynamic

Suggested Citation

Robinson, Paul H. and Holcomb, Lindsay, The Criminogenic Effects of Damaging Criminal Law’s Moral Credibility (July 16, 2021). Southern California Interdisciplinary Law Journal, Forthcoming, U of Penn Law School, Public Law Research Paper No. 21-07, Available at SSRN: https://ssrn.com/abstract=3775666

Paul H. Robinson (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Lindsay Holcomb

University of Pennsylvania Law School - Student/Alumni/Adjunct ( email )

Philadelphia, PA
United States

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