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Tuesday, April 11, 2023

Justice before Expediency: Robust Intuitive Concern for Rights Protection in Criminalization Decisions

Bystranowski, P., Hannikainen, I.R. J
Rev.Phil.Psych. (2023).


The notion that a false positive (false conviction) is worse than a false negative (false acquittal) is a deep-seated commitment in the theory of criminal law. Its most illustrious formulation, the so-called Blackstone’s ratio, affirms that “it is better that ten guilty persons escape than that one innocent suffer”. Are people’s evaluations of criminal statutes consistent with this tenet of the Western legal tradition? To answer this question, we conducted three experiments (total N = 2492) investigating how people reason about a particular class of offenses—proxy crimes—known to vary in their specificity and sensitivity in predicting actual crime. By manipulating the extent to which proxy crimes convict the innocent and acquit those guilty of a target offense, we uncovered evidence that attitudes toward proxy criminalization depend primarily on its propensity toward false positives, with false negatives exerting a substantially weaker effect. This tendency arose across multiple experimental conditions—whether we matched the rates of false positives and false negatives or their frequencies, whether information was presented visually or numerically, and whether decisions were made under time pressure or after a forced delay—and was unrelated to participants’ probability literacy or their professed views on the purpose of criminal punishment. Despite the observed inattentiveness to false negatives, when asked to justify their decisions, participants retrospectively supported their judgments by highlighting the proxy crime’s efficacy (or inefficacy) in combating crime. These results reveal a striking inconsistency: people favor criminal policies that protect the rights of the innocent, but report comparable concern for their expediency in fighting crime.

From the Discussion Section

Our results may bear on the debate between two broad camps that have dominated the theoretical landscape of criminal law. Consequentialists argue that new criminal offenses may be rightfully introduced as long as their benefits, primarily, their effectiveness in combating crime, outweigh their social costs. For example, the decision to approve a travel ban should rely on a calculus integrating both the ban’s capacity to hinder terrorist operations and intercept the terrorists themselves, as well as its detriment to well-meaning travelers. If the former exceeds the latter, there is reason to support the proxy crime—otherwise not (Teichman 2017).

In contrast, non-consequentialists advocate certain categorical constraints on the legitimate scope of criminalization—one of which is non-infringement on the rights of the innocent. From a non-consequentialist perspective, convicting the innocent violates a fundamental tenet of criminal law, and is therefore wrong even if doing so would come with enormous benefits for a law’s expediency—and, in turn, for social welfare. Specifically, negative retributivism is, roughly, the claim that the state has a categorical obligation not to punish innocents nor punish the guilty more than they deserve; but it does not have a similar moral obligation to punish all offenders (Bystranowski 2017; Hoskins and Duff, 2021).