West Texas Juries Not Interested in Theories of Punishment

Most people — including most people accused of federal drug crimes and other crimes — believe in the concept of “punishment.” More specifically, they make a common sense assumption that increasing the punishment for a crime will lead to a decrease in its likely occurrence in the future.

On the contrary, however, research has emerged to show that punishment — as traditionally defined — may have a more complicated relationship with recidivism (the tendency to commit a crime again) than most people realize. Consider, for instance, this quote from researchers Friedman and Brinker, who, in 2001, said: “punishment is not one single strategy but a collection of strategies that exists in a continuum from very mild to highly aversive approaches.”

In other words, it gets complicated!

Factors that can influence that the “effectiveness” of punishment (e.g. jail time, fines, loss of rights and privileges, etc) include:

* the certainty that a punishment will be applied
* whether the punishment gets equally applied to all offenders
* whether the punishment will have negative effects (e.g. alienation, aggressiveness, reproducing the “punishing behavior” in people who’ve been through it, etc.)
* Whether the punishment is administered immediately after the crime or delayed * Whether the punishment is used in conjunction with rewards for good behavior (e.g. contrition, restitution to a victim) — or whether it’s administered as just a negative stimulus
Furthermore, differences among individuals can be important. For instance, a sociopath may not be deterred — even with the strongest possible punishment — from committing a crime again. But maybe a youthful drug offender will be convinced to “straighten up and fly right” if he loses his drivers license and has to spend a night in jail.
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Our biases further complicate the picture. Many of us hold deep, unconscious beliefs about how to get other people to change their behaviors and how to get them not to do things we don’t want them to do. These beliefs are often primitive — they get passed to us through our culture and communities. Separating fact from fiction about punishment can be tricky because — unlike in other fields, such as botany — ideas about justice and morality tie into our emotions.

Jurors have biases and beliefs about punishment which must be explored during the jury selection process. Some will have more sophisticated opinions than others. The prosecution likes to talk about deterrence( “send a message to the community!”) which may ring true for the less educated or sophisticated juror, but not appeal to a more educated person.

Unfortunately for those accused of Federal or State drug crimes, the citizens on the jury as a rule don’t read much literature about punishment outside of the news. A seasoned trial lawyer who has picked a lot of juries is a necessity for the person facing drug charges, especially in west Texas.