"The Ongoing Revolution in Punishment Theory: Doing Justice as Controlling Crime," given by Robinson, the Colin S. Diver Professor of Law at the University of Pennsylvania School of Law, was presented by the Arizona State Law Journal . The lecture is named in honor of Edward J. "Joe" Shoen, Chairman and CEO of AMERCO, the parent company of the U-Haul® system, and a 1981 graduate of the College of Law.
Robinson discussed the underpinnings of the American judicial system's punishment model, saying that the way a society metes out punishment on its members demonstrates its core values and must be based on a clear understanding of its motivation: punishing those who are blameworthy, deterring future crime, or some combination of both.
Robinson also will produce a paper on the subject that will be published in the Arizona State Law Journal along with reaction and comment from other experts in the field.
"This is the first in what will be an annual tradition that will allow the Law Journal to be on the cutting edge and have impact," said Ed Gonzalez, a third-year law student serving as the Law Journal's editor-in-chief.
Dean Paul Schiff Berman of the College of Law praised the lecture series for bringing leading scholars to the College of Law and then setting them in dialogue with other scholars on important legal and policy questions of the day.
"This is precisely the kind of forum for lively intellectual exchange that public law schools should be providing," Berman said.Shoen, who attended the lecture, says the idea of justice ran throughout his law school experience.
“Law school taught me that the legal system may look like a maze, but its essence is justice,” Shoen says. “If a law was designed on a rational basis, but ends up destroying your rights rather than protecting them, you can make a case that it is bad law.”
Shoen, who attended the College of the Holy Cross in Worcester, Mass., and the Harvard Business School, often reads pleadings in his company’s lawsuits.
“One thing law school shows you is that there are so many nuances in a lawsuit,” Shoen says. “Our goal is to avoid lawsuits, and if you can figure out the real nexus of a case, you can figure out a way not to go there again.”
Laurence De Respino, general counsel for AMERCO, says that having a boss who is trained in the law keeps him on his toes.
“It elevates the discussion,” De Respino says. “He is not a passive recipient of counsel. He wants to know what the law is. He’s in tune with the legal concepts, and the social and business justification for it. And he knows that you can argue your case for a different interpretation of the law.”
In the lecture, Robinson said the question of who should be punished and how much goes to the core of a society's values.
A model based on deterrence requires the belief that people will know and understand the law, be able and willing to calculate the cost of breaking it, and perceive that the cost outweighs the benefits of the crime. That level of understanding and analysis is usually the exception rather than the rule, he said.
"Does the guy standing outside the 7-11 waiting to rob it know the rule?" Robinson asked. "Studies show that people don't know." And most people don't think they'll get caught, so they don't believe the punishment will ever be imposed on them, anyway, he said.
Robinson summarized a variety of animal tests that showed subjects don't change their behavior dramatically unless the punishment is immediate, strong and applied in every case. The justice system, on the other hand, works slowly, starts with smaller punishments for first offenders, and is imposed on only the small percentage of offenders who are caught.
The idea of preventive detention, locking up offenders to protect society, and rehabilitation also are flawed, Robinson said.
That debate about punishment reached a dramatic climax recently, with a change, the first in 47 years, in the model penal code promulgated by the American Law Institute, on which most states base their criminal code. It now states that the first operating principal must be to do justice. If a law is able to optimize deterrence, that's good, but it must not be inconsistent with deserved punishment.