Benforado is an assistant professor of law, with an interest in applying insights from the mind sciences to law and legal theory.
Punishment is nearly as old as crime itself. Ever since the first Neanderthal snuck into his neighbor’s cave and was caught red-handed stealing raw meat, humans have been punishing one another for wrongdoing. But what are the motivations behind punishment?
That’s what Adam Benforado, assistant professor at Drexel’s Earle Mack School of Law, is trying to find out. He applies insights from the mind sciences—most notably embodied cognition, moral psychology and implicit social cognition—to law and legal theory.
Benforado and his research partner, Geoffrey Goodwin of the psychology department at the University of Pennsylvania, are particularly interested in better understanding the nature of retribution.
“A lot of the emphasis in the legal profession is on the fact that we punish because we’re very focused on avoiding future bad consequences,” Benforado says. “We want to deter bad actors, you might want to deter the person who has committed the crime from doing it again, [or] you might want to deter other would-be wrongdoers. That’s general deterrence.
“You also want to potentially incapacitate dangerous people. One of the things I had always wondered about was whether that was actually what was driving people at a deeper level. When people supported the death penalty for a serial killer or suggested that a rapist should be thrown away without a key, was that really about future concerns or was it something more related to retribution?”
Benforado and Goodwin, who first bonded over a shared love for the Liverpool Football Club of the English Premier League, both felt research in this area was lacking. Isolating factors that were uniquely related to retribution from those that had to do with general deterrence and incapacitation proved problematic.
A novel approach was needed. So instead of asking people how they might punish human beings, the researchers asked them how they would punish animals.
Their initial hope was that by looking at people’s attitudes toward punishing a shark or a dog, the researchers could eliminate general deterrence as a punishment motivation.
“It doesn’t make any sense for people to think that the killing of a shark by authorities several days after the shark attacked a little girl could prompt other sharks to say, ‘Hey you know what happened to Bill? He was killed because he bit a little girl three days ago. We better not bite any girls in the future,’” Benforado says.
They still needed to rule out the possibility of incapacitation as a motive for punishment. To do this, they employed several tactics.
One experiment consisted of presenting a scenario in which an animal perpetrator was sentenced to death. Participants were only exposed to the level of pain induced by the killing method. The study showed that participants believed a more painful death was appropriate for an animal perpetrator who had seemingly acted without provocation to kill a more sympathetic victim, causing the victim to suffer significantly. Since the animal was certain to be killed in all of the experimental conditions, incapacitation could not distinguish between them.
“What we find in our research is that people do have retributive desires to punish animals that have killed human beings—and those desires don’t differ significantly from retributive desires aimed at human beings,” Benforado says. “There is good evidence for people being driven to deliver just deserts in proportion to the harm created and the wrongness of the bad act. For example, we find that people are very sensitive to information about the nature of the victim. People believe that a shark is much more deserving of being killed if it attacks a little girl, as opposed to an older homeless man or a dog.”
Instead of asking people how they might punish human beings, the researchers asked how they would punish animals.
Likewise, Benforado points to the importance people attach to tracking down and killing the actual guilty party, rather than a simple “stand-in.”
In another experiment, the researchers described a scenario in which, after a shark attack, the local authorities hunted down the perpetrator. Some subjects were told that testing proved that the authorities had caught the actual shark that killed the victim, while others were told that they caught a similar shark, but not the actual one that committed the attack. The logic of the study was that if someone is interested in punishing purely for incapacitation, the only thing that should matter is eliminating sharks that pose a future danger—guilt or innocence for past misdeeds should be irrelevant, except to the extent that it reveals something about future dangerousness.
“We find evidence that it’s essential for people to kill the right animal, the actual perpetrator, as opposed to an equally dangerous animal of the same size and species,” Benforado says. “The reason that people punish is not about making us safer in the future—if in fact that was the case, people should feel any dangerous shark near the beach ought to be put down—but we find people really care a lot about whether this is an evil animal that has transgressed.”
Should Retributive Principles Be Written Into Law?
There is a debate raging in the legal community now about the level to which retribution ought to guide legal processes and procedures, Benforado says.
“In order to start to answer that question, you need to know what people’s actual instincts are,” he says. “Imagine you were sitting on a jury, and it happens to be a little girl who is the victim, versus, say, a grown man. How does that influence how you perceive the crime and the appropriate level of punishment? If the bad actor caused the victim pain or suffering, how does that impact your ultimate decision? Is that impact something that we want to prevent? Do we want all victims to be treated equally?
Benforado believes the work will not only impact our current judicial system but will also add to our understanding of a long history of punishing nonhuman actors, principally animals.
“When it comes to punishment, our research suggests that the magnitude of the perceived loss is quite consequential. Are we comfortable with a world in which an individual who sets a bomb that kills a little girl is executed while one who by pure chance ends up killing a seeing-eye dog is not?”
Benforado says he has not taken a position on these questions yet, but he feels passionately that to answer them appropriately, scholars and policymakers need to know more about the nature of punishment.
“There is a group of powerful legal scholars who have been working hard to try to get retributive principals more into legal codes and to quite explicitly encourage legal actors to take retributive principals into concern,” he says. “At this point in our project, we are not picking a position on whether that retributive revolution is a good thing. But I think it’s possible to read our work and actually say that because retribution appears to be operating at this very basic level, and because retribution can be directed at entities that we don’t generally believe ought to be a target of punishment, maybe that is a reason to be weary of attempts to assert more retributive principles into law.”
Benforado suggests that his current research may have implications in a number of other areas as well, including the issue of criminal liability for corporations.
“When a corporation is implicated in a harm that has occurred, is it appropriate to punish the corporation itself, as opposed to simply the people that run the corporation?” he says. “There are people out there who say, ‘That’s crazy. A corporation is a legal fiction. It lacks the necessary capacity to be punished.’ I think that our research sheds some interesting light on this debate because it shows that people’s punishment motives can extend to entities generally thought not worthy of punishment because they lack the necessary mental states and capacities.”
Benforado believes the work will not only impact our current judicial system but will also add to the understanding of a long history of punishing nonhuman actors, principally animals.
“There are numerous examples of legal codes providing for animal punishment and records of actual trials over the centuries for attacking dogs, ravenous pigs and goring oxen,” he says. “Many explanations have been offered for these seemingly strange practices, and I think our research offers a new scientific perspective on something that has puzzled people for hundreds of years.”
Intersections of Injustice
Although his research is aimed primarily at legal academics and psychologists, Benforado is also reaching out to a broad audience in a book, which will examine the criminal justice system through the lens of psychology and neuroscience. The book, called “Unfair: How Our Hidden Minds Lead to Injustice,” is slated for publication in late 2013 or 2014.
“The book is about the characters in our criminal justice system, what moves them, how they think and how bad outcomes can arise,” he says. “We have a lot of assumptions about what is going on that are not supported by the evidence from psychology and neuroscience. Each chapter looks at a different character: the judge, the prosecutor, the police officer, the expert witness, et cetera.
“Consider our common sense assumptions about judges. We have an idea that there are two kinds of judges in the world: umpires, who just call balls and strikes, and activists, people with agendas. In the book, I unpack evidence from the mind sciences to see if this conception is accurate. And it turns out, it’s not.”
“All judges are susceptive to various cognitive biases and processes operating beyond their conscious awareness that may sway them one way or another. Little things like the time of day when a judge hears a parole case may have a huge influence,” Benforado adds. “Researchers, for example, recently looked at over a thousand parole decisions and found that first thing in the morning the chance of parole was around 65 percent, but that it dropped to around 0 percent right before a break for a meal. After the break, it shot back up to about 67 percent. That’s not the idea of how our legal system works. No one thinks it happens, or should happen, but when you actually look at the evidence it turns out that these sources of unfairness are having a big impact.”
And so is Benforado. A history major at Yale, he first became interested in the intersection of psychology and the justice system while at Harvard Law School, where he earned his JD.
“I’m a firm believer that interdisciplinary work is the future of academia,” he says. “The categories of these different departments that are so separate within universities, that’s going to make less and less sense over time. The scholars who are willing and have the courage to reach across the divide into that other department across the university, I think that’s where a lot of the breakthroughs are going to come.”