Behavioral Sciences and the Law
Behav. Sci. Law (in press)
Published online in Wiley InterScience
(www.interscience.wiley.com) DOI: 10.1002/bsl.761
The Function of Punishment
in the ‘‘Civil’’ Commitment
of Sexually Violent Predatorsy
Kevin M. Carlsmith, Ph.D.,*
John Monahan, Ph.D.z and Alison Evans, M.A.x
Two experiments find that support for civil commitment
procedures for sexually violent predators is based primarily upon the retributive rather than incapacitative goals of
respondents. Two discrete samples composed of students
(N ¼ 175) and jury-eligible citizens (N ¼ 200) completed
experimental surveys assessing their support or opposition
to scenarios in which a sexual predator was to be released
after completing his criminal sentence. Respondents were
sensitive to likelihood of recidivism only when the initial
sentence was sufficiently punitive. When initial sentence
was lenient, respondents strongly supported civil commitment without regard to future risk. Results are discussed in
light of the U.S. Supreme Court’s ruling in Kansas v.
Hendricks (1997) on the constitutionality of civil commitment laws for sexually violent predators. Copyright # 2007
John Wiley & Sons, Ltd.
INTRODUCTION
Why does society punish those who break the law? Immanuel Kant (1790/1952)
famously argued that one must punish solely on the basis of ‘‘just deserts’’ and ensure
that offenders receive the punishment they deserve. This perspective, alternatively
described as the retributive function of punishment, asserts that punishment should
be proportional to the severity of the harm and the intent of the perpetrator. This
contrasts sharply with the position of utilitarians—including Jeremy Bentham
(1843/1962), John Stuart Mill (1863/1957), and others—who argued that the chief
aim of all action should be to increase the well-being of society. The utilitarians
argued that punishing an individual could only be moral if the pain caused by the
punishment was outweighed by the benefit of reduced crime in the future. They
*Correspondence to: Kevin M. Carlsmith, Department of Psychology, Colgate University, 13 Oak Drive,
Hamilton, NY 13346, U.S.A. E-mail: [email protected]
y
The authors acknowledge the Study Response Project at Syracuse University for its assistance in
recruiting participants for Study 2.
z
University of Virginia School of Law.
x
Colgate University.
Copyright # 2007 John Wiley & Sons, Ltd.
K. M. Carlsmith et al.
argue that if a potential punishment cannot possibly reduce the likelihood of future
misdeeds (through incapacitation, deterrence, rehabilitation, or some other
mechanism) then the punishment is immoral.
There is no resolution to this debate, despite efforts to formulate increasingly
complex derivations and formulations of the original retributive and utilitarian
positions (see Nagin, 1998; Zimring & Hawkins, 1995). Given that legions of
scholars have been unable to resolve this question, it is perhaps not surprising that
the U.S. legal system finds itself in an equally ambiguous state. There is no generally
accepted unified theory of punishment, nor any guidelines to lay out the justification
for legal punishment (Robinson & Darley, 1997). Rather, it is left to officials at the
local, state and federal level, or even individual judges, to determine the function of
punishment.
The recent profusion of civil commitment laws for ‘‘sexually violent predators’’
casts this issue into sharp relief. These laws seek to identify those persons convicted
of sexual offenses who are the most likely to recidivate and to provide a mechanism
whereby they can be isolated until such time as they are no longer found to be a threat
to society. Although ostensibly designed for ‘‘civil’’ incapacitation, in practice these
laws appear to many to be adding another punitive sentence to the original
court-ordered sanction. Not surprisingly, persons found to be sexually violent
predators have argued that statutes authorizing their commitment violate
Constitutional protections against double jeopardy (Morse, 2004; see also Zander,
2005 for arguments against civil commitment laws based on the questionable validity
of the DSM criteria). In 1997, one of these cases reached the United States Supreme
Court.
In Kansas v. Hendricks (1997), the Supreme Court upheld a Kansas statute under
which an offender, after being convicted of a specified sexual crime and serving the
prison sentence associated with that criminal conviction, can be found to be a
sexually violent predator (Kansas Stat. Ann. Sexually Violent Predator Act, 1994).
This finding can serve as the predicate for civil commitment to a mental hospital for
an indefinite period. The Act defined a ‘‘sexually violent predator’’ as ‘‘any person
who has been convicted of or charged with a sexually violent offense and who suffers
from a mental abnormality or personality disorder which makes the person likely to
engage in the predatory acts of sexual violence.’’
Justice Thomas, writing for the five–four majority, made clear that a pivotal
feature of the case was the intent behind the legislature’s action in enacting the
statute. If the legislative intent is to incapacitate people who are dangerous and
abnormal, the law is constitutional; if the legislative intent is to exact further
retribution from people who have already been punished, the law is unconstitutional.
He found the law constitutional: ‘‘Nothing on the face of the statute suggests that the
legislature sought to create anything other than a civil commitment scheme designed
to protect the public from harm. . . And the conditions surrounding that confinement
do not suggest a punitive purpose on the State’s part’’ (Kansas v. Hendricks, 1997).
Justice Breyer, however, writing for the dissenters, concluded that the Act ‘‘was
not simply an effort to commit Hendricks civilly, but rather an effort to inflict further
punishment upon him’’ (Kansas v. Hendricks, 1997). Breyer stated that he ‘‘would
place particular importance upon those features that would likely distinguish
between a basically punitive and a basically nonpunitive purpose,’’ and he cited
precedent for asking whether a statute was so punitive ‘‘‘either in purpose or effect’ to
Copyright # 2007 John Wiley & Sons, Ltd.
Behav. Sci. Law (in press)
DOI: 10.1002/bsl
Civil commitment
negate the legislature’s ‘intention to establish a civil remedial mechanism’’’ (Kansas
v. Hendricks, 1997).
Intent is fundamentally a psychological question. The Supreme Court majority in
Hendricks took the justification that was written into the statute itself as prima facia
evidence for the underlying motive of the law. From a social psychological
perspective it is naı̈ve to accept that a person’s stated and actual motives are
isomorphic. Indeed, the social psychological literature is rife with examples in which
people are inaccurate about the basis of their attitudes and behavior (Ellsworth &
Ross, 1983; Nisbett & Wilson, 1977; Wilson, 2002). More to the point, recent
empirical work has demonstrated that although people frequently articulate
incapacitative motivations in sentencing criminal offenders, their behavior is more
consistent with the retributive perspective (Carlsmith, 2006; Carlsmith & Simester,
2006; Feather, 2002; McFatter, 1978). For example, Carlsmith (2006) asked
participants to punish offenders under a variety of circumstances and found that
people were highly sensitive to variation of factors that were relevant to a retributive
theory of punishment, but largely ignored variation of factors that were critical to
utilitarian perspectives. Carlsmith and Simester (2006) replicated this finding in a
within-participant design and asked people to explain their rationale for the
punishments they had just administered. They found that the correlation between
people’s actions and stated motivations was less than .06. In short, people’s actions
bore no relationship to their stated motives.
The purpose of this article is to explore empirically the motives that underlie
support for the civil commitment of sexual predators. Incapacitation and retribution
are each alleged to be the primary motive that drives support for these laws.
However, of these two, only one passes constitutional muster. According to Justice
Thomas, only the motives of the legislature are relevant in deciding this question.
According to Justice Breyer, on the other hand, the punitive ‘‘effect’’ of the statute
when it is applied by jurors, and not just the punitive ‘‘purpose’’ of the legislature in
enacting it, is also relevant.
Our goal is to determine which of these two motives is present in ordinary people’s
use of the civil commitment laws. When individuals express support for civil
commitment laws for sexual predators, are they expressing incapacitative desires to
protect society from potential recidivists, or are they expressing a retributive desire to
inflict additional punishment against some of society’s most reviled offenders?
We presented a short vignette derived from the original case of Kansas v.
Hendricks (1997) to participants. Some people read a version in which the defendant,
Leroy Hendricks, received punishment that was sufficiently severe from a retributive
standpoint, while others read a version in which he received insufficient punishment.
This manipulation would be highly relevant to a person concerned with assigning a
perpetrator his just deserts, but far less relevant to one concerned with societal
protections. A second manipulation indicated the likelihood that the perpetrator
would commit future crimes upon his release. This manipulation, by contrast,
should be irrelevant to the just deserts perspective, but highly relevant to the
utilitarian perspective.
We predicted that participants’ incapacitative concerns would be secondary to
their retributive concerns. This would be revealed by a specific interaction pattern
such that likelihood of recidivism would be relevant if and only if the perpetrator had
first received punishment sufficient to satisfy respondents’ retributive desires.
Copyright # 2007 John Wiley & Sons, Ltd.
Behav. Sci. Law (in press)
DOI: 10.1002/bsl
K. M. Carlsmith et al.
METHOD
Participants
We conducted an online experiment with two discrete samples: first with a
student-based sample of convenience (N ¼ 175), and second with a nationally
representative sample of jury-eligible adults (N ¼ 200). The first sample consisted of
volunteers from several university courses in Psychology. It was 77% female with a
normal distribution centered along the liberal–conservative dimension: 40%
indicated they were ‘‘very’’ or ‘‘somewhat’’ liberal, 33% were ‘‘very’’ or ‘‘somewhat’’
conservative, and the remaining 27% chose the neutral midpoint between liberal and
conservative. The second sample came from a standing panel of participants
coordinated by Study Response at Syracuse University, who were offered a chance to
win two lotteries worth $69.00. Subsets of this panel (N ¼ 62,691) have been used in
studies reported in a variety of peer-reviewed publications, and the panel overall is
highly representative of the nation’s demographics (Stanton & Weiss, 2002). Our
sub-panel of respondents was 58% female with a median age of 47 years. Forty-four
percent were employed full-time, 15% were employed part-time, 28% were retired
or unemployed by choice, and 6% were unemployed and searching for work.
Twenty-three percent had a high-school diploma, 32% had a baccalaureate degree,
31% had an advanced degree, and fewer than 3% were full time students.
Procedure
Participants completed an anonymous online experimental survey. The first page
provided a brief overview of the study, and the second page provided the case
description and follow-up questions.
Materials
The vignette described the perpetrator ‘‘Henderson’’ as a middle-aged man
convicted of two separate incidents of pedophilia and molestation: the first involved
indecent exposure to a 9-year-old girl, and the second of ‘‘taking liberties with two
13-year-old boys.’’ Six versions of the vignette were generated by manipulating the
likelihood of recidivism (three levels), and the punishment sufficiency of the original
sentence (two levels).
Recidivism Manipulation
Participants learned that upon his release a panel of three psychologists with
expertise on pedophilic recidivism estimated that there was a 0, 4, or 70 percent
likelihood that Henderson would offend again if released into the community. Their
assessment was based on ‘‘. . .a wide variety of converging evidence, including clinical
observation, the perpetrator’s age and education, and extensive examination of
long-term studies on pedophilic recidivism’’. The 0% condition was augmented by a
Copyright # 2007 John Wiley & Sons, Ltd.
Behav. Sci. Law (in press)
DOI: 10.1002/bsl
Civil commitment
note that Henderson had been ordered to undergo a highly effective drug-therapy
regimen to prevent recidivism. The 0 and 70% conditions were chosen to represent
the extreme ends of a continuum to maximize the likelihood of detecting
incapacitative motives. The 4% condition was included to represent a very low
likelihood of recidivism, while maintaining at least some possibility of future offense.
Punishment Sufficiency Manipulation
In the low punishment condition Henderson had served 3 years in a comfortable
minimum-security prison with full access to sports, movies, libraries, and visitors. In
the high punishment condition he had served 25 years in a harsh, maximum security
prison in which he was repeatedly confined to a solitary cell and was admitted to the
infirmary on numerous occasions for ‘‘injuries consistent with having been violently
assaulted’’ by other inmates.
The levels of each independent variable were derived from a pretest (N ¼ 20) for
lay estimates of ‘‘reasonable’’ sentences and probabilities of recidivism for the given
offense, rather than from actual sentencing guidelines or recidivism rates. These
estimates indicated, for example, that some people considered a 10% recidivism rate
to be extremely high, whereas others considered it quite low. Likewise, consensus for
‘‘sufficient’’ and ‘‘insufficient’’ sentences did not emerge until the spread exceeded
25 years. Thus, we used anchors that pretest participants unanimously agreed met
the criterion for ‘‘sufficient’’ or ‘‘insufficient’’ punishment, and ‘‘very likely’’ or
‘‘very unlikely’’ to recidivate. In all conditions, Henderson was 56 years of age at the
time of his potential release when the state filed a petition to classify him as a sexual
predator and to confine him indefinitely as a threat to society.
Dependent Measures
Participants were asked to indicate whether they would ‘‘oppose or support civil
commitment for Henderson’’ on a five-point Likert-type scale anchored with 1
‘‘strongly opposed’’ and 5 ‘‘strongly supportive’’ of commitment, and in a
dichotomous ‘‘commit/don’t commit’’ format. Several additional questions
followed, including whether participants would prefer to see Henderson placed
in a hospital or jail setting, and the number of years that he ought to have initially
received in the original sentencing. The instructions contrasted civil commitment
with prison, and stated ‘‘this provision allows the State to confine an individual for an
unspecified period of time until it can be demonstrated that the individual no longer
represents a threat to society.’’
RESULTS
The two experiments were nearly identical in design and results, and so we report the
analyses simultaneously. In all cases the student sample is reported first, and the jury
eligible sample second.
Copyright # 2007 John Wiley & Sons, Ltd.
Behav. Sci. Law (in press)
DOI: 10.1002/bsl
K. M. Carlsmith et al.
Civil Commitment: Five-Point Scale
We first examined the extent to which support for enacting civil commitment
proceedings against the perpetrator was based on incapacitative and retributive
grounds. A traditional two-way analysis of variance decomposition of the data
revealed two main effects and no interaction. As recidivism likelihood increased, so
too did the mean support for incarcerating Henderson, F(2, 169) ¼ 9.90, p < .001;
F(2, 194) ¼ 4.39, p ¼ .01. However, respondents were also sensitive to the
sufficiency of the punishment, F(1, 169) ¼ 6.74, p ¼ .01; F(1, 194) ¼ 5.06,
p ¼ .03. When Henderson was not adequately punished, respondents expressed
stronger support for civil commitment.
The two-way interaction was not significant in either sample. However, the
pattern of our predicted interaction was different from the standard two-way
interaction, and so we followed the advice given by Abelson (1995, 1996) and
Rosnow and Rosenthal (1995) to use planned complex contrasts in addition to the
traditional analysis of variance.
This analysis uses a pattern contrast for an omnibus test of our hypothesis using
the contrast coefficients {þ1, þ1, þ1, þ1, #1, #3} across the ordered cell means
(see Figure 1 for the order of cells from A to F1). This contrast tests the hypothesis
that participants in the insufficient punishment condition would offer strong support
for civil commitment regardless of recidivism likelihood (visualized as a relatively
high and flat line in Figures 1 and 2), but that participants in the sufficient
punishment condition would qualify their support based on the likelihood of
Henderson’s recidivism.
As predicted, the pattern contrast was significant in both samples (t(169) ¼ 4.56,
p < .001, d ¼ .55; t(194) ¼ 3.28, p < .001, d ¼ .47). An F test of the residual sum of
5
Insufficient punishment
C
Sufficient punishment
4
B
A
D
E
3
F
2
1
0%
4%
70%
Manipulated Likelihood of Recidivism
Figure 1. Support for civil commitment as a function of initial punishment sufficiency and likelihood of
recidivism, student sample (N ¼ 175).
1
For clarity of discussion, we report the contrast coefficients as if it were a one-way design with six levels,
rather than a 2 $ 3 factorial. With this design, the traditional two-way interaction would be coded {þ1, 0,
#1, þ1, 0, #1}.
Copyright # 2007 John Wiley & Sons, Ltd.
Behav. Sci. Law (in press)
DOI: 10.1002/bsl
Civil commitment
5
Insufficient Punishment
Sufficient Punishment
4
3
2
1
0%
4%
70%
Manipulated Likelihood of Recidivism
Figure 2. Support for civil commitment as a function of initial punishment sufficiency and likelihood of
recidivism, jury eligible sample (N ¼ 200).
squares for both samples was clearly not significant and small (<2.0). This meets the
criteria of Abelson and Prentice (1997) for a ‘‘canonical’’ outcome, in which the
hypothesized model represents a parsimonious account of the data.
As an additional test of the hypothesis, we conducted simple linear contrasts at
each level of punishment sufficiency. In the student sample the linear contrast {0, 0,
0, þ1, 0, #1} for sufficient punishment was significant (t(169) ¼ 3.64, p < .001,
d ¼ .56) and stronger than the significant linear contrast {#1, 0, þ1, 0, 0, 0} for
insufficient punishment, t(169) ¼ 2.58, p ¼ .01, d ¼ .40. In the jury eligible sample,
the linear contrast for sufficient punishment was significant, t(194) ¼ 2.49, p ¼ .01,
d ¼ .25, indicating a moderate sensitivity to recidivism rates. However, as predicted,
the linear contrast for insufficient punishment was not significant, t(194) ¼ 1.03,
p ¼ .30, d ¼ .15. Thus, tests of the simple effects supported the hypothesized
interaction.
We next conducted a series of pairwise comparisons between sufficient and
insufficient punishment conditions at each of the three levels of recidivism. When
Henderson had a 0% likelihood of recidivism, participants were more supportive of
civil commitment when the initial punishment was insufficient (cell A > F),
t(169) ¼ 2.27, p ¼ .02, d ¼ .35; t(194) ¼ 1.96, p ¼ .05, d ¼ .28. This difference
disappeared at 4% (B ¼ E) and 70% (C ¼ D) likelihoods. This analysis further
confirms the converging nature of the interaction across both samples.
Civil Commitment: Dichotomous Response
The five-point scale has several psychometric properties that make it the preferred
instrument for measuring attitudes. However, in practice people must make
dichotomous decisions to commit or not commit the perpetrator. Table 1 shows the
percent of respondents who supported civil commitment in each of the six conditions
for each experiment. These results mirror those of the previous analysis, and are thus
only briefly discussed.
Copyright # 2007 John Wiley & Sons, Ltd.
Behav. Sci. Law (in press)
DOI: 10.1002/bsl
K. M. Carlsmith et al.
Table 1. Support for civil commitment by punishment sufficiency and likelihood of recidivism for Studies
1 and 2. Data refer to the percent of respondents who support civil commitment by condition. Numbers in
parentheses indicate the total number of participants per cell
Initial punishment
Study 1
Insufficient
Sufficient
Study 2
Insufficient
Sufficient
Probability of perpetrator recidivism
0%
4%
70%
57.7 (26)
27.6 (29)
45.7 (33)
54.3 (35)
85.2 (27)
76.0 (25)
80.0 (30)
62.5 (32)
73.0 (37)
72.5 (32)
93.1 (29)
86.5 (37)
The critical analysis revolves around the interaction between punishment
sufficiency and recidivism likelihood. As before, when the punishment was
insufficient, people paid less attention to the likelihood of recidivism and uniformly
expressed their desire to incarcerate the perpetrator. By contrast, when the
punishment was sufficient, the recidivism manipulation became more relevant. To
statistically test for this interaction, we followed the advice of Kirk (1968, p. 66) and
pffiffi
Mosteller (1951) by performing an ANOVA on the arcsin transform ð2 arcsin pÞ of
the data. This had the effect of correcting for the box-like distribution of
dichotomous data. As predicted, both samples revealed the critical interaction, F(2,
1) ¼ 8.89, p < .01; F(2, 1) ¼ 4.51, p < .05.
Prison Versus Hospital
The previous set of analyses provides clear support for the overall hypothesis, and
suggests that there are at least two motives underlying support for civil commitment
proceedings: incapacitation and retribution. To clarify the meaning of our
participants’ reactions to civil commitment, we asked whether they would prefer
to see Henderson committed to a prison or to a secure psychiatric hospital if the
proceedings were to occur. Although the statutes do not grant this authority to jurors
in actuality, the answer to this question yields insight into whether the purpose of the
commitment was punitive or incapacitative. When the perpetrator was adequately
punished, 71% of the student sample and 67% of the jury eligible sample indicated
that he should be placed in a hospital setting. Those numbers drop to 48% and 41%
respectively when the punishment was insufficient, (x2(df ¼ 1, N ¼ 175) ¼ 9.69,
p ¼ .002; x2(df ¼ 1, N ¼ 198) ¼ 13.41, p < .001).
In the jury-eligible sample we also asked respondents to tell us how many years in
prison they thought Henderson should have initially received. The answer to this
question reveals the compensatory nature of people’s support for civil commitment.
In Figure 3 we first note a strong anchoring effect2 (Tversky & Kahneman, 1974):
respondents who read that Henderson received 3 years rather than 25 years
2
The anchoring effect describes the tendency of decision-makers to ‘‘anchor’’ on an initial value, even
when there is no logical connection between the two values. In this case, the effect is probably heightened
since an expert (the original judge) provides the initial anchor.
Copyright # 2007 John Wiley & Sons, Ltd.
Behav. Sci. Law (in press)
DOI: 10.1002/bsl
Civil commitment
40
Insufficient Punishment
Sufficient Punishment
30
20
10
0%
4%
70%
Manipulated Likelihood of Recidivism
Figure 3. Recommended sentence in years as a function of initial punishment sufficiency and likelihood of
recidivism, jury eligible sample (N ¼ 186).
recommended a lower initial sentence (t(180) ¼ 2.28, p ¼ .02, d ¼ .34)3. The overall
pattern, however, supports the assertion that when Henderson did not receive an
adequate punishment, respondents disregarded the likelihood of recidivism
information. The simple linear contrast within the insufficient punishment condition
across recidivism conditions was non-significant (t(180) ¼ #0.37, p ¼ .71, d ¼ .06).
By contrast, there was a clear upward linear trend within the sufficient punishment
condition, indicating that recidivism is important (t(180) ¼ 2.62, p ¼ .01, d ¼ .39),
but only when the primary consideration of retribution has been already satisfied.
We also asked the jury-eligible sample whether they thought Henderson deserved
less or more punishment (on a five-point Likert-type scale) than he actually received.
This variable correlated .41 ( p < .001) with support for civil commitment, indicating
that commitment proceedings were a proxy for deserved punishment. Likewise, the
correlation between this variable and the desire to see Henderson placed in a jail was
.43 ( p < .001), again indicating that recommended location was highly related to the
desire to see him punished rather than mere desire to see him incapacitated.
DISCUSSION
The results of two experiments provide evidence that support for the civil
commitment of sexually violent predators is based primarily upon retributive
motives. Although concerns for incapacitation are evident, this motive is subservient
to retribution. First and foremost, people respond to information regarding whether
the perpetrator received his just deserts for the crime committed. When this
punishment was insufficient, respondents used civil commitment to correct the
3
Fourteen individuals failed to respond to this question, or responded with non-numeric answers such as
‘‘counseling’’ and were coded as missing. Sentence recommendations greater than 50 years (n ¼ 10) or for
‘‘life’’ (n ¼ 19) were coded as 50 years.
Copyright # 2007 John Wiley & Sons, Ltd.
Behav. Sci. Law (in press)
DOI: 10.1002/bsl
K. M. Carlsmith et al.
error. This finding is bolstered by the strong correlation between perceived
sufficiency of the initial sentence and support for commitment. This correlation
reveals the linear relationship between desire for retribution and support for
commitment.
Our data are based on a hypothetical scenario, which provides less intensity than a
real case in one’s own backyard. This difference might cause individuals to process
the information differently, although there is reason to believe that this approach
resembles reality more closely than not. Most individuals have no first hand
experience with sexual predators and rarely face the imminent release of such
convicts into their neighborhood. Rather, most people’s exposure comes from news
accounts, and this experience is quite similar to the procedure we employed.
Although we acknowledge the possibility that crime victims might have different
motivations than non-crime victims, prior research by Tyler and Weber (1983)
found little support for this hypothesis.
Our results are based solely on one vignette, and there is a need for replication
with a more diverse set of cases and more levels of each independent variable. We
modeled the vignette after the case that went to the Supreme Court, and believe that
this was the correct place to begin. Although we speculate that these results would be
supported across a variety of cases, our focus for this paper is exclusively on the
statute involving civil commitment of sexual predators.
We also note a potential confound regarding the perpetrator’s age at the time of
offense. We held Henderson’s age (56) constant at the time of his release, but
because he served either 3 or 25 years his initial age necessarily varied between 53
and 31. Participants might have perceived the heinousness of the crime differently
depending on whether Henderson was relatively old or young during the offense, and
might have drawn different conclusions regarding his likelihood of recidivism
depending on his initial age of offense. Relatedly, in one condition he had refrained
from offending (albeit involuntarily) for 3 years and in the other he had refrained for
25 years. It is possible (although we have no directional predictions) that this
difference could have led people to perceive the risk of recidivism differently. These
concerns are mitigated somewhat by the literature, suggesting that people do not
strongly differentiate between perpetrators in this ‘‘middle’’ range of life (Bergeron &
McKelvie, 2004).
Our findings are highly consistent with previous research showing the importance
of retributive desires in punishing criminals (Carlsmith, 2006; Carlsmith, Darley, &
Robinson, 2002; Ellsworth & Ross, 1983; McFatter, 1978). We did not ask the
respondents to explicitly justify their support for civil commitment, but had we done
so there probably would have been strong consensus that it was based on worries that
the perpetrator would commit more crimes if given the opportunity. This disconnect
has frequently been reported in the literature, with explanations ranging from
self-presentational concerns (Ellsworth & Ross, 1983) to lack of self-insight
(Carlsmith & Simester, 2006; Wilson, 2002).
The purpose of this article was to demonstrate at a general level that retribution is
of paramount importance to jurors, and that they will take advantage of
incapacitative options to achieve these retributive goals. We do not make the claim
that jurors are actively subverting the law. We have no evidence of this, and moreover
we have no evidence that juror instructions could not override our findings. Indeed,
we asked our participants to make decisions that many jurors are not allowed to make
Copyright # 2007 John Wiley & Sons, Ltd.
Behav. Sci. Law (in press)
DOI: 10.1002/bsl
Civil commitment
(e.g. civil commitments), and to consider legally irrelevant information (e.g. whether
the perpetrator had been allowed to play sports and watch videos). Rather, we
conclude that one must not take the expressed motives for punishment at face value.
Individuals, and the laws they create, may ostensibly cite utility but in fact be driven
by retribution.
These results are particularly noteworthy in light of the Supreme Court ruling that
stimulated this research. The ruling made clear that the constitutionality of civil
commitment laws hinge upon the underlying justification for the commitment, and
the present results demonstrate that ordinary people support these laws for
unconstitutional reasons. According to Justice Thomas, the views of ordinary people
are not relevant: only the motivation of the legislature is relevant. According to
Justice Breyer, however, a statute can be so punitive ‘‘‘either in purpose or effect’ to
negate the legislature’s ‘intention to establish a civil remedial mechanism (emphasis
added)’’’ (Kansas v. Hendricks, 1997). Given the findings reported here from
jury-eligible citizens, there can be little doubt that the effect of sexual predator
statutes is to have jurors punish again offenders who have already been punished
once.
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