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Distinguishing civil and criminal institutional deprivations of liberty: An analysis of expressive functions

Distinguishing civil and criminal institutional deprivations of liberty: An analysis of expressive functions
Marc W. Pearce


Department of Psychology, University of Nebraska–Lincoln, Lincoln, NE 68588, UNITED STATES OF AMERICA.


A basic function of the criminal justice system is to impose legal punishment through deprivations of liberty.  Because deprivations of liberty that flow from civil institutions are not punitive, the distinction between civil and criminal institutional deprivations of liberty arguably hinges on the concept of punishment.  Punishment, in turn, may be distinguished from non-punitive  sanctions based on its unique expressive function; that is, punishment is defined in part by the special feelings of resentment and judgments of disapproval that it expresses.  These feelings and judgments have been labeled “condemnation.”

This dissertation explores whether condemnation can be translated into an empirical construct that may be assessed reliably and used to study judgments concerning an actor’s suitability for punishment.  A condemnation scale was designed, and in the first of two studies the scale proved to be a reliable measure of condemnation expressed toward hypothetical criminal defendants who raised the insanity defense.  Condemnation scores differed significantly depending on the mental impairments alleged by the defendants, such that higher average scores were associated with diagnoses that do not seem to diminish the defendants’ criminal responsibility.  In addition, significantly higher condemnation scores were associated with defendants who committed more severe crimes.  Condemnation scores were also predictive of mock jurors’ verdict decisions in some cases.  

A revised version of the scale was also found to be a reliable measure of the condemnation expressed by legal professionals toward hypothetical juveniles facing either delinquency adjudications or trials in criminal court.  Although condemnation scores did not vary significantly based on the severity of the juvenile’s offense or his premeditation, scores were predictive of the participants’ charging decisions.  

The findings suggest that juvenile court charging decisions and insanity case judgments may be associated with the intensity of the condemnation that decision-makers direct toward the accused.  Although the findings do not (and cannot) confirm the normative argument that condemnation is a defining characteristic of punishment, they suggest that judgments generally track legal institutions’ conceptual and justificatory foundations.