Nietzsche counseled, “Mistrust all in whom the impulse to punish is powerful.”[i] Whether or not Nietzsche knew what he was talking about is one thing, but recent research confirms the apparent—the impulse exists.
John M. Darley, a Princeton psychologist, reviewed research on the desire to punish in a recent journal article.[ii] Darley writes that the desire to punish comes from intuitive processes that are fast, concurrent with other processes, automatic, and effortless—much like those involved in visual perception as opposed to a reasoning process. [iii] The intuitive process to punish often cannot be explained rationally by those experiencing the urge to punish, but can be overridden by the more deliberative reasoning process.[iv]
According to Darley, neural imaging studies confirm the existence of an immediate emotional response to punish and a separate slower, abstract reasoning process that can override the emotional response. Researchers have used “punishment games” and brain activation patterns to tease out what is happening, and found humans are rewarded by just-desert punishment. Darley writes: “The conclusion here is that humans find punishing norm violations in these experimental games to be a rewarding activity and are willing to spend resources to do so. No similar brain activity pattern was found when the punishment administered was only symbolic. Rewarding punishment needs to inflict actual pain.”[v]
Research further indicates that individuals are willing to pay to punish others who transgress against third parties even though there is no risk that the transgressor could harm that individual. This is called “altruistic punishment.”[vi] One research study provided proof that the human desire to punish is an effective mechanism to control transgressions within groups to the advantage of all in the group.[vii] Darley postulates that it is likely that the urge to punish may be an evolved trait that made group cooperation possible, but may also contain elements of learned behavior.[viii]
Darley cites research that indicates a rather close consensus among citizens about the rank ordering of different crimes.[ix] He writes that “Some rather preliminary evidence suggested that when citizens perceive that the law assigns punishments that conflict with their intuitions, they lose respect for the law.”[x] Darley discusses designing a system of justice that better integrates the human intuitive desire to punish and the rational determination of a punishment that includes such non-retributive goals such as rehabilitation of the defendant. He concludes that this endeavor would require further empirical exploration.[xi]
Judges sentence defendants on a daily basis. The proper integration of competing objectives is the essence of sentencing. Whether or not we always succeed in our efforts is another matter.
[i] Nietzsche, Friedrich, Thus Spoke Zarathustra, Viking Press, 1954, p. 100.
[ii] Darley, John M., 2009, “Morality in the Law: The Psychological Foundations of Citizens’ Desire to Punish Transgressions”, Annu. Rev. Law Soc. Sci. 5:1-23.
[iii] Ibid, p. 3.
[iv] Ibid p. 5
[v] Ibid p. 11.
[vi] Ibid p. 12.
[vii] Ibid p. 12; Gurerk O, Irlenbushch B, Rockenbach B, 2006, “The competitive advantage of sanctioning institutions.” Science 312:108-11
[viii] Ibid p. 15.
[ix] Ibid p. 18
[x] Ibid p. 16
[xi] Ibid p. 21
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