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BIOUNCERTAINTY - ERC Starting Grant no. 805498

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2nd of February 2023 – Maciej Próchnicki – What do we punish for? Phantoms, proxies, and Al Capone’s tax forms

2nd of February 2023 – Maciej Próchnicki – What do we punish for? Phantoms, proxies, and Al Capone’s tax forms

We have the pleasure to invite you to another research seminar in the ‘BIOUNCERTAINTY’ research project. This week Maciej Próchnicki will give a talk: "What do we punish for? Phantoms, proxies, and Al Capone’s tax forms". The seminar will take place on Thursday, 2nd of February at 5:30 p.m. in the room 25 on Grodzka Street and via MS Teams.

Abstract

What do we punish for, when sentencing someone for a given crime? The answer may seem obvious both from the viewpoint of the general public, and theory of criminal law: the penal sanction should be tailored to the gravity of the criminal deed, but this rule seems to be in danger in a number of cases.

In a recent study, Jordan Wylie and Ana Gantman (2023) delineated a category of ‘phantom rules’, i.e. legal rules that are frequently broken but (a) very often not enforced, and (b) not perceived as grave transgressions, as opposed to most prototypical legal and non-codified social norms.

It turned out that in cases in which a phantom rule violator committed a reprehensible but legal deed as well, people were far more punitive towards that kind of perpetrator, effectively treating the enforcement of a phantom rule as means to an end in punishing blameworthy individuals.

This result is of particular importance for the problem of the object of punishment in criminal prosecution. As noted by Gabriel Mendlow (2018), current criminal systems lean towards the Divine Justice model (criminal code containing only a general provision of prohibiting bad behavior along with the discretionary approach to prosecution and sentencing) rather than the Code of Babel (containing every potential offense coupled with the penalty for it, without any discretion). This situation jeopardizes the rights of the defendant, as criminal codes often criminalize misconduct that is not going to be prosecuted in most cases, allowing to punish the defendant for some behavior via charging them with some other type of offense. 

In the talk, we will discuss preliminary results of two experimental studies, tackling two specific problems of this kind, namely proxy criminalization, and pretextual prosecution.

Proxy crimes criminalize behavior that does not seem wrongful per se but is correlated with some other, hard-to-prove wrongdoing. The first experiment aimed to check what the object of punishment of a proxy crime is, according to normative intuitions: is it the criminalized proxy conduct itself, or rather the primary wrongdoing that could not have been proven beyond a reasonable doubt, and whether legal experts tend to be more pragmatic in sentencing for proxy crimes. In the second experiment, we deal with the phenomenon of pretextual prosecution, hypothesizing that punitive intent of a person evaluating criminal behavior will depend on whether the perpetrator is suspected of another crime.
 

Link to MS Teams meeting