Autonomy in Sentencing: Lessons from a 10-year-old child (Guest Post by Eyal Aharoni)

The following post is by Eyal Aharoni, Assistant Professor of Psychology, Philosophy, and Neuroscience at Georgia St. University:

Troubled by the state of criminal punishment today, I never expected deep insights on the subject from a 10-year-old child. As kids, my younger sister and I knew the ceramic dove on the bookshelf could be handled with advanced permission only, so when she reached up unannounced and accidentally set it free, she knew there would be consequences. The punishment, presented by my relatively progressive parents, was to write a one-page summary of a chapter from a book on ethics. My sister’s natural reaction was to negotiate. She argued that if she were required to write an essay on ethics, she might just learn to hate the subject, so instead, she should be allowed to write on a topic of her choice. My parents, finding a trace of reason, and nerve, in their daughter’s words, accepted the terms. She would still have to read and discuss the ethics chapter, but the essay could be on any subject, as long as the material was new to her.

My sister returned hours later to her family court with, not a one-page, but a five-page, bound report on the history of toothpaste. Upon presenting the evidence to the bench, she beamed with pride. From then on, my sister always asked for advanced permission—and she always got to pick her own punishment. But the disciplinary method worked so well that she didn’t have to do so often. Interestingly, my sister always came up with punishments that were not less, but more severe than what their own intuition dictated. When granted autonomy in punishment, it seemed that at least some kids really do own up.

What if the same is true of adults? In my own experience, nothing makes me crankier than when someone robs me of an opportunity to prove my thoughtfulness. It could be something simple like “Honey, can you please take out the trash?” Well, I was actually already on my way to do exactly that, and now you’ve taken my only opportunity to prove it! My wife has become quick to recognize my childlike angst and to humor me with a dramatized placation: “Sorry I took your autonomy, honey.” When she bends over backwards like this to apologize for what was a justifiable request, it’s surely overly generous on her part, even if a tad transparent—and yet, it actually works: Hubby feels validated, and my angst disappears.

If it’s true that people feel and behave better when granted a dose of autonomy, then this could have powerful implications for how we treat criminal behavior.  At face value, we might think the whole point of criminal punishment is to limit autonomy. And in this day and age, perhaps inmates should be grateful for punishments for which their freedom of mobility is the only thing taken away. Compared to their Medieval predecessors, modern sanctions like lengthy prison terms are assuredly more refined. There’s just one problem: they do diddly squat to reform offenders. If anything, such punishments make them more dangerous (Chen & Shapiro, 2007: Cullen, Jonson, & Nagin, 2011).

Even Medieval punishments—for all their depravity—fared better on this score. Their efficacy was due, in part, to the fact that they were delivered swiftly and reliably (e.g., Grogger, 1991). Before the advent of prisons, a chicken thief might have gotten a quick lashing for each chicken stolen. The physical pain must have been excruciating. For other crimes, a scarlet letter would suffice: a visible badge to warn others of your flexible character. Ostracized from their communities, life must have been extremely difficult. We don’t think much about their efficacy because, by modern standards, these methods are considered cruel.

But what’s crueler? If car thieves could choose, for instance, between 15 years in prison and 15 lashings, how many would endure the lashings? How many would rather don a tattoo on their forehead saying “thief”? We don’t know. But that’s exactly the point. Without direct knowledge of people’s preferences, the free choice between such punishments will always be less cruel than any choiceless punishment.

If sympathy doesn’t move you, consider that choice-based punishments might also be more effective at earning offenders’ cooperation. By inviting offenders to become active participants in their own punishment, we affirm their existing capacity and motivation to take responsibility. In return, they are more likely to relax their defenses, internalize its message, and subscribe to positive change. Paradoxically, good behavior comes, in part, from preserving autonomy, not taking it away.

You don’t have to be a bleeding heart to support autonomy in sentencing. Designed properly, choice-based punishments might actually reduce recidivism and foster prosocial behavior because criminal defendants, like most humans, are more likely to respect the system that punishes them if they perceive some semblance of agency in that process. Since swift alternatives like scarlet letters are a fraction of the cost of a prison sentence, choice-based punishments could reduce the burden on our bloated prison complex and free up funding for other, more effective criminal justice strategies like the provision of job training, policing, and mental healthcare.

In this day and age, autonomy in sentencing might sound like a radical idea. I thought the same of my little sister when she proposed to serve as co-author in her own childhood punishment decision. But are these ideas any more radical than the idea of punishments without choice—that is, punishments that do essentially nothing to achieve our basic societal goals like public safety? So-called “modern” criminal sanctions that quash any role for agency at least as backward and cruel as Medieval ones. Autonomy in sentencing policies will not be a panacea, and we might discover reasons why some offenders shouldn’t be eligible for them. But our justice system is in desperate need for innovation. The future of punishment could benefit from the basic insight that a little choice can go a long way to leverage people’s existing motivations to take responsibility for their actions.

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