A Behavioral Ethics Perspective on the Theory of Criminal Law and Punishment

This chapter examines how the field of behavioral ethics-the study of how people make and perceive ethical decisions and behavior-could influence the theory and doctrine of criminal law and punishment. By exploring several contexts in which applying behavioral ethics principles yields normative insights into criminal law and punishment doctrines, this chapter uncovers the potential of expanding the dialog between these two fields. Among the issues discussed are the question of whether misconduct that is easier to self-justify should be punished more harshly than unjustifiable misconduct; the question of whether an altruistic motivation for criminal wrongdoing should be punished more harshly given that “good” people might find it easier to cheat when the consequences of their wrongdoing are shared with others or reduced; the question of how we should treat negligent perpetrators who inadvertently take unreasonable risks; the question of whether the contagiousness potential of a certain wrongdoing should justify harsher punishment; and the strong effect of the circumstances of organizational settings on the likelihood of individuals to commit wrongdoing.