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This chapter discusses how current American criminal law often quietly defers to lay judgments of justice. It first considers three sorts of rules common in modern criminal codes that reflect a deference to lay judgments of justice: recognizing excuse defenses; failing to take account of factors relevant to coercive crime-control principles; and creating a false impression that resulting harm is significant by including result elements in offense definitions. It then discusses the vagueness of the standards used in doctrinal formulations and how it reinforces the deference to lay judgments. One plausible explanation for the deference to lay intuitions of justice is that the drafters understood, although they did not make it explicit, that a criminal code could not openly conflict with the community's shared intuitions of justice without losing moral credibility with the community it governs, and that such a loss of credibility would undermine the criminal law's crime-control power.

The criminal law's formal criteria for assessing punishment are typically contained in criminal codes, the rules of which fix an offender's liability and the grade of the offense. A look at how the punishment decision-making process actually works in practice, however, suggests that courts and other decision makers often go beyond the factors that the criminal law formally recognizes. This chapter focuses on these extralegal punishment factors (XPFs). XPFs include matters as diverse as an offender's apology, remorse, history of good or bad deeds, public acknowledgment of guilt, special talents, old age, extralegal suffering from the offense, as well as forgiveness or outrage by the victim. The chapter begins by sketching the different XPFs that are being given effect and illustrates decision makers' reliance on them. It then reports the results of an empirical study, showing which factors have intuitive support among lay persons and to what extent. Finally, it examines the implications of these findings for criminal justice reform.

This chapter first discusses how the criminal law does often agree with community intuitions, but it also often conflicts with lay judgments of justice. It builds on the discussion of the “utility of desert,” in Chapter 8 and elaborates further on the implications of these conflicts. It explains that the community and the law often differ not just in their result but in their general approach to assessing liability. It considers the interesting attraction that test subjects had for using the “liability but no punishment” option commonly given to them in the research studies. Finally, it examines whether the use of a jury system has implications for the present research findings.

This chapter focuses on disagreements about intuitions of justice. It first discusses how the use of ambiguous crime scenarios leads to disagreement, but only disagreement about the case facts and not about its relative blameworthiness. Also, the fact that some people prefer more harsh punishment generally, while others prefer more lenient punishment generally, tends to obscure the agreement between the two groups on the relative blameworthiness of different offenders. The chapter then presents two studies that demonstrate true disagreements. The studies suggest that the high level of agreement seen for a “core” of wrongdoing breaks down as the case facts moves out from the “core” to include more culturally dependent factors. And while many lay judgments about justice are intuitive, not all are. Especially as a case moves out from the core, reasoned judgments, engaging life experiences, and personal values come into play; and these, of course, can differ among people.