Intuitions of justice: Implications for criminal law and justice policy.

Source: (2007) Southern California Law Review. 81(1): 1-68.

Recent social science research suggests that many if not most judgments about criminal liability and punishment for
serious wrongdoing are intuitional rather than reasoned. … But there exist a wide variety of reasons that have driven
reformers to adopt distributions of punishment that conflict with people’s shared intuitions of justice (referred to as
“empirical desert”). … As we argue, and others have recognized, deviations from what is perceived as deserved punishment,
“empirical desert,” may affect the community’s respect for the criminal justice system. … After reading this and
other intuition-violating cases, in which the legal codes criminalized actions that respondents did not consider criminal,
participants rated themselves significantly less likely to cooperate with police and less likely to use the law to guide
their behavior. … In one of the studies, a participant is initially told only, for instance, that an offender has embezzled a
certain amount from his employer. … The utility of desert arguments above suggest that these kinds of crime-control
reforms are shortsighted and that effective long-term control of crime lies not in trying to maximize deterrence or incapacitation
in ways that conflict with people’s intuitions of justice, but rather in doing justice, and thereby building the
criminal law’s moral credibility in order to harness the powerful forces of internalized norms and social influence. (Abstract)