Academic

Green & Kugler on Perceptions of Theft Seriousness

By Lawrence Solum

Stuart P. Green and Matthew B. Kugler (Rutgers Law School-Newark and Princeton University - Department of Psychology) have posted Community Perceptions of Theft Seriousness: A Challenge to Model Penal Code and English Theft Act Consolidation on SSRN.  Here is the abstract:

In the middle of the 20th century, criminal law reformers helped pass laws that consolidated previously distinct common law offenses such as larceny, embezzlement, false pretenses, extortion, blackmail, and receiving stolen property into a unified offense of theft, imposing uniform punishments for a diversity of methods of stealing and a diversity of types of property that could be stolen. The result was a "consolidated" scheme of theft, with a single broad definition of property (typically, "anything of value") and a single scheme of grading (based, roughly, on the value of the thing stolen). In this study, participants were given two sets of scenarios - one involving variations in the means by which a theft was committed, the other involving variations in the type of property stolen - and asked to rate these thefts in terms of blameworthiness and punishment deserved. They drew sharp distinctions across both means of theft and type of property, not adopting a consolidated view. Under the principle of fair labeling - the idea that criminal law offenses should be divided and labeled so as to represent widely felt views about the nature and magnitude of law breaking - such data provide the basis for a significant challenge to modern theft law.

And from the text:

What citizens? intuitions say about the seriousness of various criminal offenses matters for a number of reasons. Most scholars agree that society?s ability to enforce compliance with the law lies less in the power to impose sanctions than it does in the norms by which people direct their lives. That is, most people refrain from committing most crimes not because they fear sanctions if they do, but because they believe it is morally wrong to do so.23 Thus, it is important that the law be consistent with moral norms. As Paul Robinson and John Darley have put it:

The criminal justice system?s power to stigmatize depends on the legal codes having moral credibility in the community. The law needs to have earned a reputation for accurately representing what violations do and do not deserve moral condemnation from the community?s point of view. This reputation will be undercut if liability and punishment rules deviate from a community?s shared intuitions of justice.24

Where the criminal law is viewed as offering a reliable statement of what the community regards as wrongful, citizens are more likely to follow its lead in cases which are unclear. When criminal codes deviate from the norms of the community, citizens may be less likely to cooperate with or acquiesce in the system?s demands.25 

It is not merely the case that social norms play a role in shaping the criminal law. The criminal law also plays an important role in informing, shaping, and reinforcing societal norms. Children and adults learn what is wrong in part from what the law says is wrong. Where the law deviates too far from existing norms, its instructive function is impaired as well.

Very interesting--highly recommended.

Full post as published by Legal Theory Blog on January 12, 2009 (boomark / email).