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Punishment theory examined in Shoen Leading Scholars Lecture

March 03, 2009

The goal of punishment has been a longstanding issue of debate in America, a debate that has come to a momentous crossroads, according to Paul H. Robinson, one of the world's leading scholars on criminal law, who delivered the Edward J. Shoen Leading Scholars Lecture on Feb. 26 at the Sandra Day O'Connor College of Law.

"The Ongoing Revolution in Punishment Theory: Doing Justice as Controlling Crime," given by Robinson, the Colin S. Diver Professor of Law at the University of Pennsylvania School of Law, was presented by the Arizona State Law Journal. The lecture is named in honor of Edward J. "Joe" Shoen, Chairman and CEO of AMERCO, the parent company of the U-Haul® system, and a 1981 graduate of the College of Law.

Robinson discussed the underpinnings of the American judicial system's punishment model, saying that the way a society metes out punishment on its members demonstrates its core values and must be based on a clear understanding of its motivation: punishing those who are blameworthy, deterring future crime, or some combination of both.

Robinson also will produce a paper on the subject that will be published in the Arizona State Law Journal along with reaction and comment from other experts in the field.

"This is the first in what will be an annual tradition that will allow the Law Journal to be on the cutting edge and have impact," said Ed Gonzalez, a third-year law student serving as the Law Journal's editor-in-chief.

Dean Paul Schiff Berman of the College of Law praised the lecture series for bringing leading scholars to the College of Law and then setting them in dialogue with other scholars on important legal and policy questions of the day.

"This is precisely the kind of forum for lively intellectual exchange that public law schools should be providing," Berman said.

In the lecture, Robinson said the question of who should be punished and how much goes to the core of a society's values.

A model based on deterrence requires the belief that people will know and understand the law, be able and willing to calculate the cost of breaking it, and perceive that the cost outweighs the benefits of the crime. That level of understanding and analysis is usually the exception rather than the rule, he said.

"Does the guy standing outside the 7-11 waiting to rob it know the rule?" Robinson asked. "Studies show that people don't know." And most people don't think they'll get caught, so they don't believe the punishment will ever be imposed on them, anyway, he said.

Robinson summarized a variety of animal tests that showed subjects don't change their behavior dramatically unless the punishment is immediate, strong and applied in every case. The justice system, on the other hand, works slowly, starts with smaller punishments for first offenders, and is imposed on only the small percentage of offenders who are caught.

The idea of preventive detention, locking up offenders to protect society, and rehabilitation also are flawed, Robinson said.

That debate about punishment reached a dramatic climax recently, with a change, the first in 47 years, in the model penal code promulgated by the American Law Institute, on which most states base their criminal code. It now states that the first operating principal must be to do justice. If a law is able to optimize deterrence, that's good, but it must not be inconsistent with deserved punishment.

Judy Nichols,
(480) 727-7895
Sandra Day O’Connor College of Law