October 2016 – How should emotion inform punishment decisions in modern criminal justice? How does emotion, in fact, affect decisions about and perceptions of just punishment in the contemporary criminal process? How might current courtroom practices in America that give legal protection to emotional expressions by both defendants and victims suggest a different view of justice than that provided by classical theories of retribution and deterrence?
These are the questions I pursue here.
I begin with the main classical theories of punishment: retribution and deterrence. After laying out their essential precepts, I consider how they treat sentencer emotion. Both theories envision the determination of punishment as an entirely reasoned process, without regard to sentencer feelings. Then I turn to the actual practice of punishment and explore the real life significance of emotions on sentencer decisions. Unsurprisingly, sentencers are often affected by their emotional responses to offenses and offenders. Because emotional responses may or may not prove congruent with punishment principles, we must make an effort to moralize their influence.
In the last section I take up legally sanctioned expressions of emotion by both defendants and victims at sentencing. What is the purpose of these emotive practices, which at least on the victim side are relatively new to the American legal scene? Answering this question reveals how current practices relating to emotional expressions at time of sentencing have outrun traditional punishment theory. I will argue for a concept of justice that goes beyond judgments on individual offenses and offenders to encompass relations between persons affected by crime. I will argue that contemporary expressive practices are better justified under a restorative justice approach than by either retribution or deterrence.
Emotion and Principles of Punishment: Retribution and Deterrence
Punishment, as I use the term here, refers to negative sanctions imposed for a criminal conviction. In the United States these sanctions range from community service requirements, fines or probation, to lengthy prison terms or capital punishment. Concern with emotions relating to punishment normally centers on the feeling-responses of the sentencer to the wrong of the offense and the character of the offender. Later I will look at the significance of emotional expressions by victims and defendants.
The Western concept of just punishment has for centuries centered on the principles of retribution and deterrence. These were classically set out in the eighteenth century by philosophers Immanuel Kant (1999) (retribution) and Jeremy Bentham (1968) (deterrence). As Kant originally posited, and modern theorists like Michael Moore (1987) hold, punishment for wrongdoing is just if it is deserved according to the nature of the wrong done. Under the principle of retribution there should be a fundamental moral connection between crime and punishment. The worse the offender’s choice to do wrong, the worse the punishment; conviction and sentence should reflect the offender’s individual culpability. Under a strict retributive approach, the consequences of punishment for both the individual punished and society are irrelevant to justice. Thus whether the punishment might dissuade the offender, or others, from committing future offenses, does not matter in determining what punishment is deserved.
The retributive sentencer uses first principles of right and wrong conduct (what is right and wrong in and of itself) to assess the nature and severity of the defendant’s offense. The severity of the harm done and the nature of the offender’s choice to inflict that harm are evaluated together. Murder is punished more than burglary, rape more than theft because in each of these pairings the first-listed offense involves a greater harm (the taking of life, disregard for sexual autonomy) than the second (disregard for autonomy in residence and property rights). Connected to assessment of harm is assessment of the defendant’s choice to act as he or she did.
Choices to offend can be assessed according to the defendant’s purpose in acting – whether the person had the conscious aim of doing harm, for example, or the extent of the defendant’s awareness of legally critical facts. In an assault case, an attack made with the purpose to inflict great bodily injury will be judged a more culpable act than if the attacker did not intend to inflict severe injury, but was aware of a significant and unjustified risk that significant physical harm might occur. In homicide, assessments of culpability can include emotion states and motives, as in the distinction between a premeditated murder, in which the defendant made a carefully calculated decision to kill, and a heat of passion killing (normally classified as voluntary manslaughter) which involves a more spontaneous, highly emotional choice to kill, under circumstances where a reasonable person might also be strongly tempted to serious violence. Retribution explains all of these distinctions on the ground that the more the actor consciously chose to do harm, the more culpable his or her conduct, and therefore the more deserving the actor is of punishment.
It is important to distinguish here between retribution as the word is used in law and moral philosophy from the way it is often used in ordinary conversation. In casual discourse the words retributive or retribution often signify a person’s desire for payback against a wrongdoer and the infliction of harsh punishment. They suggest an angry punisher. The principle of retribution, though, says nothing about a personal desire for payback. Nor does it require or imply an angry sentencer. The determination of deserved punishment should be made according to universal moral principles on behalf of the community; the determination of deserved punishment is dispassionate. Nor does retribution, in principle, dictate harsh results. In some cases, a punishment that is deserved may be more lenient than that called for by other theories such as deterrence.
The principle of deterrence is often seen as the main rival to retribution. Where retribution is deontological, because based on concepts of fundamental right and wrong, deterrence is teleological, finding its justification in the consequences of punishment – in the observable good that punishment achieves. Deterrence, as originally set out by Bentham (1968), and presented in contemporary versions by Nigel Walker (1994) and James Q. Wilson (1983), is based on a utilitarian calculation of costs and benefits, with those costs and benefits assessed according to basic measures of human pleasure and pain. Because it involves the infliction of pain, punishment represents a significant disutility. It can only be justified to the extent that the disutility of its pain is outweighed by its utility, meaning the social benefit that it provides in preventing future instances of crime.
Like other utilitarian theories, deterrence assumes that human beings are rational calculators, who will adjust their behavior according to the consequences of their actions. Individuals will try harder to avoid committing a serious crime in order to avoid the serious penalties that will follow from conviction.Deterrence provides for proportional punishment according to the idea that the crimes that cause the most social harms are those that need to be deterred the most, hence their commission merits the highest (deterrent) penalty. Less harmful crimes merit lesser punishment on the same reasoning. Deterrence may be divided into general deterrence, preventing future crimes by others, and specific deterrence, preventing future crimes by this offender.
There are two other consequence-oriented punishment justifications which may be fit under the utilitarian umbrella of deterrence, though they are often treated as theories in their own right: incapacitation and rehabilitation. Incapacitation justifies the forcible restraint of an individual to prevent future offenses against members of (free) society during a period of punishment. Rehabilitation justifies loss of liberty to effect a change in an offender such that he or she will become a productive and law-abiding citizen; to ensure, in other words, that he will not offend again.
Advocates for deterrence champion the theory’s grounding in empirical assessment. Deterrence eschews retribution’s reliance on purportedly fundamental, but perhaps just subjective, moral principles in favor of assessment of observable facts: the harms of certain crimes and the penalty needed to deter them efficiently. Similar to retribution, the calculation of social utilities and disutilities under deterrence is meant to be dispassionate. The personal feelings of the sentencer – whether angry or fearful, sympathetic or disgusted – are irrelevant to calculations of a penalty that produces the greatest good for the greatest number.
To sum up, classical theories of punishment posit a sentencer who decides punishment without emotion. Emotion is unnecessary. Actually, as we will see, emotional influence is viewed as dangerous under these theories, because of its potential to distort the decision making process. Theories of punishment do not decide particular sentences, however. Humans beings do. And when we look at how human sentencers make their decisions, we see that the practice of punishment often looks very different from its theoretical conceptions.
Emotion and the Practice of Punishment: Problems with Sentencer Emotion
Punishment practice does not generally follow either retribution or deterrence as classically described, because few sentencers are punishment theory purists: they do not limit themselves to either retributive or deterrent principles. Instead, most sentencers view both principles as valid sources of guidance. Some offenses and offenders may inspire the sentencer to take a more retributive approach; others may inspire a largely deterrent approach. For example, a judge might determine that an elderly man who murdered his sick wife might deserve a significant sentence by virtue of his premeditated decision to kill (a retributive approach) rather than because he needs a long sentence to deter him from future criminality (a deterrent approach).
By contrast, consider punishment for a young woman who was peripherally involved in an organization that committed widespread identity theft. Although her contribution to the scheme was modest and of brief duration, and can be traced to the influence of a controlling boyfriend, the larger organization caused significant economic and psychological harms. This is also an offense on the rise, presenting significant public safety concerns. Under retribution, this defendant would deserve only modest punishment due to her limited personal culpability, but a court concerned about general deterrence of identity theft might impose a more significant sentence here.
Equally significant for the problem of regulating the influence of emotions, principles of retribution or deterrence are so broadly stated that they provide few means of ensuring that particular decisions are rendered in accord with punishment principles alone. It can be extraordinarily difficult to tell the difference between a purely reasoned retributive judgment, for example, and one that might be motivated by a sentencer’s personal anger at the offender . Similarly, how can we distinguish between a purely utilitarian assessment of punishment and one that is influenced by personal fear of the offender? This means that it can be difficult to say whether a given sentence was based on principle or emotion.
Sentencing in criminal cases responds to events that often inspire a high degree of emotion. Although courts presume that punishment decisions will be rendered dispassionately, legal scholars have increasingly recognized the inevitability of emotive influence in punishment decisions. Emotions cannot be simply banished from punishment decisionmaking by moral or legal fiat. This is especially apparent when we realize that in a democracy, important penal decisions are made in legislative halls as well as courtrooms. Legislators set the upper and lower limits of lawful punishment through statutory enactments. With minimum mandatory penalties, legislators can effectively dictate punishment in some cases, leaving judges with little sentencing discretion. Legislators of course are elected officials who must regularly answer to voters; this makes them highly susceptible to the influence of public emotion. For this reason, mandatory penalties do not solve the problem of emotive influence on sentencers; they just shift the problem from judges to elected officials.
Probation officers who write presentence reports should also be considered important decision-makers in the sentencing process. The way an officer gathers information about offense and offender, how she or he presents it in the presentence report and the recommendation the probation officer makes to the judge on sentence, all can have a significant influence on the ultimate judicial decision. Thus the susceptibility of probation officers to emotional influence should be a concern as well.
Given that sentencers, at least in cases of serious crime, will inevitably be influenced by emotional responses to the offense and offender, any adequate conception of just punishment must take account of the potential effects of emotion on sentencer decisions. The effort must be at least twofold: (1) to determine how emotion is likely to influence sentencers, and (2) to devise mechanisms to minimize the chance that emotion will motivate an unjust sentence. Addressing these in turn, we must first learn more about the fraught relationship between sentencer emotion and punishment principles. We must determine how emotional influences may coincide with punishment principles and how they may conflict. Then we can attempt to moralize emotive influence; this will prove more constructive than trying to suppress it entirely.
While Western thought has long treated emotions as irrational and therefore opposed to deliberative reason, the cognitive and rational basis of much emotion is widely recognized in contemporary philosophy, psychology and legal scholarship (Solomon 1983, De Sousa 1987, Lazarus & Lazarus 1994, Bandes 1999). In some instances at least, emotional judgments may work in sync with moral and legal judgments.
Anger is the emotion most associated with retributive punishment decisions, because its judgment structure bears a significant similarity to retribution’s. Anger begins with an assessment of wrong. We become angry with someone who has wronged us or another. This leads to the felt urge to set the wrongdoer right by criticism or punishment. Thus anger in response to a crime might prompt a personal judgment that punishment principles would approve as well. Anger at rape, or a brutal murder, or a fraud scheme against senior citizens who were targeted for their vulnerability – these emotional responses might track retributive judgments. Anger’s judgment here might parallel a reasoned assessment of deserved punishment that was based on careful evaluation of the harm done and the offender’s culpable choice to cause it. The relationship between anger and moral judgment remains deeply uncertain, however. Anger is not necessarily morally based. Sentencer anger, for example, could be rooted in race or ethnic bias, convincing sentencers to impose punishment that is not in fact deserved.
Some have sought to reconcile the realities of emotion in punishment, and especially anger, through expressive theories of punishment (Feinberg 1970, Pillsbury 1989, 2002; Duff 2001). These theories generally marry retributive principles and expressive justification for penal practice. Punishment does and should affirm the importance of the community values that were violated by the defense. In this way, the value of public anger at wrongdoing is acknowledged, but the expression of that emotion is kept within the bounds of deserved punishment.
Under deterrence’s rule, fear of what the offender might do in the future or what others similarly situated might do, may mirror a reasoned assessment of the need to prevent future criminality. Fear can be notoriously subjective, however; its assessment may depend on personal sensitivities that do not accurately weigh relevant social costs and benefits in imposing punishment. Again, class and race biases may be particularly dangerous. Certain defendants by virtue of their group classification may be perceived as more dangerous than they actually are. Others may be seen as less dangerous than they truly are.
Under both retribution and deterrence, sentencers are susceptible to what I call mercy discrimination, in which sentencers feel more sympathetic to some defendants than others based on class and race distinctions. As a result, the favored (few) get individualized and often merciful treatment; the less favored (meaning most defendants) receive the standard severity of American penal practice. A defendant who is white, or perhaps Asian, from a middle class background with significant educational and other achievements, family support and good career prospects who is convicted of a sexual assault may receive a light sentence by a judge who focuses on the defendant’s individual life circumstances.
The sentencer may perceive the defendant as less “criminal” and therefore less dangerous or culpable than others appearing before the court, and perhaps also see the defendant as more sensitive to punishment and therefore less needful (under a deterrence regime) of a harsh sentence. Meanwhile an African American or Latino convicted of the same offense, who comes from an economically struggling family, who has few educational achievements and only modest career prospects, will receive the full measure of the law’s punitive force. Here the court will emphasize the severity of the defendant’s offense in terms of both culpability and dangerousness. The sentencer may not admit to any hostility to minorities, but special empathy for nonminority defendants will produce biased decisions all the same – because of nonmoral emotive influence.
Regardless of punishment theory, moralizing emotive influences requires that sentencers make a conscious effort at emotional self-knowledge. The most dangerous emotional dynamics in sentencing stem from self-deception. Self-deception can take several forms. A form of self-deception encouraged by law can be found in what has been called the myth of dispassion (Pillsbury 1989, p. 666). This myth holds that legal decisionmakers can and should decide issues without emotion. Following this myth, the sentencer may, even in a highly emotional case, deny that he or she has experienced any emotion in reaching the punishment decision, ignoring the ways that initial inclinations and even final judgments may have been affected by unnoticed or unacknowledged feelings. Or, the sentencer may acknowledge personal feelings about the case, but believe that based on his or her own professional rectitude, that the anger, fear or other emotion experienced is morally principled. It simply could not be the product of merely personal concerns.
To combat these tendencies, sentencers should engage in formal self-examination about emotion. What am I feeling about this case? What do I feel about the person to be sentenced? Are these feelings justified by the facts as assessed under punishment principles? If not, how can I reach a reasoned decision, putting aside irrelevant personal feelings?
Another set of tools to moralize emotive influence comes from better articulation of the varieties of emotion and their moral characteristics. A more rigorous classification of emotion types than is found in ordinary language will permit better distinctions between feelings that may support and those that may contradict just punishment decisions. Along these lines, a number of contemporary legal and moral philosophers have begun to explore different emotions and relational perspectives that are potentially relevant to punishment. Exploring negative emotions, commentators have looked at the moral relevance of resentment and disgust (Moore 1987, Kahan 1998, Nussbaum 1998). On the positive side, writers have examined the possible connection between mercy and forgiveness on just punishment (Hampton & Murphy 1988, Murphy 2003).
Although it is not my focus here, I should also note a long-standing tradition of analyzing public emotions about punishment, an analysis that may be used to support or to critique punishment practices. In the early 20th century, sociologist Emil Durkheim described and celebrated the moral educative effects of punishment. His argument was that punishment of crime reflected and reinforced public commitment to basic social values (1984). Contemporary social scientists tend to be more critical, exploring how modern harsh punishment regimes respond to and express social fears and anxieties (Simon 2007, Garland 2001).
The Emotional Expressions of Victims and Defendants: Restorative Justice and the Relational Turn
While much of the legal and philosophical consideration of emotion and punishment in recent years has focused on the emotions of sentencers, there have also been significant controversies about the emotional expressions at sentencing hearings of persons directly affected by the crime or its punishment. Here, most discussion has centered on personal statements by victims at sentencing which detail the personal harms of the offense. Legal commentators have also considered the normative status of emotional expressions by defendants at sentencing, particularly statements of remorse (see Murphy 2012, Ward 2006).
Modern law provides both defendants and victims the chance to speak at sentencing in most US jurisdictions. Defendants have a right of allocution which guarantees the opportunity to address the court directly prior to sentencing. Victims rights legislation, enacted in most American jurisdictions in recent years, gives individual victims and victim-survivors the right to address the court as well. Victims often deliver what is called a victim impact statement, in which they detail how they and loved ones have been affected by the offense. These statements are formally directed to the court, but victims often envision the defendant as their primary audience. As an example, here is a recent impact statement by a rape victim that was widely publicized, and that is directed primarily at her convicted attacker:
Despite early judicial controversy (Booth v. Maryland 1987) and significant academic critique (Bandes 1995), there is a present consensus in American law today that emotional expressions by victims at sentencing are valuable and even essential to the justice process (Payne v. Tennessee 1991; Cassell 2009). Why they are important is not so clear, however, especially, under classical punishment theories.
A key question in law has been whether victim impact statements provide relevant and important information to the sentencer. Do victim statements provide judges with additional, significant information about harm and offender culpability (for retribution), or about the future dangerousness of the offender (for deterrence)? Or is the contribution made by such statements essentially emotional? Often it appears to be the latter. The harms and wrongs of the offense and the dangers of future wrongdoing are generally well established in the case before victims ever speak. What is distinctive about victim statements is the way that the consequences of the offense are expressed in emotionally salient terms. Few can listen to such statements and not be (emotionally) moved.
Here, for example, is a link to a couple of victim impact statements given at the sentencing of a notorious serial killer.
To the extent that the value added by victim statements is essentially expressive, they would not seem needed for just punishment under either retribution or deterrence. Instead, such statements might be excluded given their potential to emphasize racial, class and other personal characteristics of victims, which may exacerbate the most dangerous aspects of emotive influence – race and class bias. By encouraging more severe punishment in cases with particularly sympathetic or articulate victims, such statements may lead to further inequity in a criminal justice system already rife with inequality (Bandes 1996, 2009). In sum, the dangers of nonmoral emotive influence might argue against giving victim impact statements the pride of place that they now have in the American sentencing process.
Now we turn to defendant expressions of remorse at sentencing. These always been part of punishment decision-making. Following conviction, defendant’s frequently offer remorse statements, either personally or through counsel. They may express regret for the wrong done and the harm inflicted. If the convicted offender does not express remorse prior to sentencing, prosecutors are quick to point out that fact. Prosecutors may also question the sincerity of any remorse that defendants do express. Sentencing judges commonly make their own assessments of defendant statements of remorse. Given the importance of such statements, we might expect that they would have strong justification under both classical punishment theories. In fact, remorse statements are only important to deterrence assessments, and even then their significance may be contested.
Offender remorse is not relevant to retribution. Punishment is deserved according to the defendant’s past wrongdoing; subsequent developments, including a shift in the offender’s outlook, do not matter. Deterrence of course looks ahead, which makes remorse potentially significant. A remorseful offender is less likely to offend again and thus there is less need for punishment to achieve specific deterrence. Given the offender’s obvious remorse, there might also be less need for punishment to make an example for other potential offenders. And yet considerations of remorse raise many procedural, pragmatic and substantive law issues (Ward 2008). A major problem is evidentiary: how do we assess the sincerity and significance of offender remorse? How can we tell if words of remorse are sincere expressions of personal responsibility as opposed to expressions of regret for capture, conviction and punishment? Even if sincere, does remorse predict future behavior? Regretting past mistakes and avoiding similar conduct in the future can be quite different things.
Notice that this discussion of remorse focuses on the effects of emotional statements on the sentencer. But what of their impact on victims present in the courtroom? Victims of wrongs both civil and criminal often say that what they want most is an apology from the person who harmed them. Expressions of remorse can change the victim’s view of the offender, transforming a thoroughly negative relation characterized by anger, hatred and resentment, into a relation of acceptance, where the offender’s humanity is acknowledged. In effect the offender’s recognition of the victim’s humanity permits the victim’s recognition of the same in the offender. Sometimes this can encourage the victim to forgive the offender, an act of moral and emotional significance, though not necessarily of legal import (Bibas & Bierschbach 2008). The relational shift that may occur following defendant expressions of remorse and apology may lift part of the emotional burden borne by victims. This would seem to make such expressions a valued part of the punishment process. Yet changes in state of moral and emotional relations between offender and victim are not addressed by retribution or deterrence, as these theories are concerned only with the state’s response to criminal wrongdoing.
For an example of a remorse statement at sentencing, see this by a young man convicted of killing a small child he was asked to babysit who would not stop crying.
To appreciate the potential value of victim and defendant emotional expressions at sentencing we must leave the realm of retribution and deterrence to consider an alternative approach to criminal justice known as restorative justice (Zehr 2015). Restorative justice is best understood as a general theory of justice rather than a theory of punishment. Restorative justice principles do not aim to justify and guide the state’s imposition of negative sanctions for criminal conduct in the way that classical theories of punishment do. The restorative justice approach does have much to say about the process of sanctioning wrongdoing, however. Most importantly for our concerns, restorative justice addresses the potential value of direct personal communication and relational transformations between wrongdoers and those hurt by the wrong.
Restorative justice views crime as a violation of community relationships. It holds that responses to crime should seek to repair those relationships. Restorative justice contemplates a community-directed, rather than state dictated, process of interaction between victim, offender, their supporters and community stakeholders to establish the responsibility of each participant. Ultimate outcomes frequently include statements of apology by the wrongdoer, and acts of restitution and atonement to those hurt.
As an example, consider a case in which two 14-year-old boys broke into an elementary school on a weekend, did extensive damage by smashing chairs, tables and spray painting walls. They also stole two computers from administrative offices. Based on surveillance images and an ill advised attempt to sell one of the computers, the boys are soon arrested and confess their involvement to the police. Assuming no significant prior criminal histories, these boys are likely to be sentenced in juvenile court to community service (with the type of service likely to be determined by the probation department), a fine and/or restitution, and a term of probation that carries with it a number of conduct mandates and restrictions (such as attending school regularly, not using drugs or alcohol) and also the potential for additional punishment if the terms of probation are disobeyed. The judge is likely to find such a sentence appropriate under either retribution or deterrence. The offense likely is not serious enough to merit incarceration under retribution, and the dangers of future similar criminality can be addressed by a non-incarceral sentence as well. The sentencing hearing will probably feature a prosecutor describing the damage done, statements of remorse made by defense counsel on behalf of the boys, and a sentencing address by the judge that will include both moral judgment on wrongdoing and warnings to the boys about the legal consequences of future misdeeds.
Now imagine a restorative justice response. Following preparatory work to explain the restorative process and to gain agreement to participate, stakeholders would be assembled, including representatives of the school, the boys, and their parents. School representatives might speak about the economic and human damage done by this crime. They might describe how upset young students were to see the smashed furniture and graffiti when they came to school on Monday morning, how disheartening it was for school teachers and administrators, and the anger of parents after they learned of the attack on the school. The boys’ parents might speak about what was going on in their boys lives that might have contributed to their conduct. The boys’ parents might also speak about their own response to the crime. The boys would speak about what they did, what they were thinking at the time, and how they feel now. The boys would be encouraged to express personally and plainly their regret for hurting others.
At some point the process would move to an creating an agreement for relational repair. The boys might, for example, agree to come to the school on a weekly basis over the next four months to work with groundskeepers and others on school maintenance and repair. The boys might agree to write a letter or record a video to apologize to students, staff and parents for what they did. There might also be an agreement of stakeholders to meet other needs that the boys may have, which might be connected with their offense, such as needs for educational, psychological or medical help, or to provide opportunities for building skills. The process would be lengthy, and often emotional, because it would call for an honest and personal recounting of the effects of the offense on the community.
The following link provides an example of some of the dynamics of restorative justice, in an exchange between victim and offender.
From the punishment and emotion perspective, what is striking about the restorative justice model is how it makes emotional expression central to doing justice. The restorative process depends on direct personal interactions between those most affected by the offense. It relies on the emotional responses of participants to reach a just community resolution.
From this account of restorative justice, we see how its principles may make better sense of contemporary practices relating to statements of defendant remorse and victim injury than do retribution and deterrence. Sincere expressions of remorse by an offender, especially if made directly to a victim, and victim statements of injury, especially if made directly to an offender, may transform moral and emotional relations between these persons and help repair community relations torn by the offense. This provides intriguing evidence that an important part of criminal justice is relational: transforming moral and emotional relations between offender, victim and community.
We have seen here that the relationship between sentencer emotion and just punishment is morally complex. We have seen that sentencers, as human decision makers engaged in often highly emotional situations, are susceptible to emotive influence. The best approach to reconciling emotions with just decision-making is not an attempt – fruitless in any case– to ban it from the legal arena, but to moralize its effects through self-knowledge and a more sophisticated understanding of the interaction between the emotional, the moral and the legal.
We have seen that the emotional expressions of victims and defendants that sentencing may make important contributions to justice, though these are not always well captured by traditional views of punishment. The restorative justice model, which sees the transformation of relationships as critical to justice, gives us a better way of understanding contemporary practices that encourage emotional expressions by victims and defendants at sentencing.
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United States Supreme Court Cases
Booth v. Maryland, 482 U.S. 496 (1987).
Payne v. Tennessee, 501 U.S. 808 (1991).