Emotions and Criminal Justice

States of emotional arousal—pleasure, anger, fear, sadness, disgust, shame, and guilt—are deeply and intimately implicated in numerous fields of sociolegal inquiry. The field of crime and criminal justice, however, is the most visible and important among these. Emotion captured the imagination of sociolegal scholars as early as Émile Durkheim (1858–1917), and more recently Norbert Elias (1897–1990).

Emotions pervade penal law and the criminal justice system. Claimants, offenders, witnesses, and victims bring their emotions to the court; courts then deal with passionate conflicts ranging from the family sphere to the larger social domain of ethnic conflicts. Court decisions can occasion outrage or anger or promote feelings of vengeance among the public and those involved. Finally, offenses provoke moral disgust while victims and offenders can elicit compassion and sympathy. Legal institutions, particularly those in the criminal justice system, are the institutions in society that are designed to deal with the most intense emotional conflicts of individuals and collectivities. Courts and their legal procedures are a prominent “institutional space” for emotions and provide a mechanism to “channel” them. The edifice of penal law itself stands on a strong undercurrent of emotions: sanctions mirror moral emotions such as disgust; the fear of sanctions should instill compliance; and vengeance is channeled through legal procedures and thus pacified.

Both Durkheim and Elias saw penal law and criminal justice as deeply embedded in the emotional culture of societies. Both theorists interpreted the transition from traditional to modern society as a pathway that continuously limited and changed the role of emotions in the public sphere. Modern societies, Durkheim argued, rely on more subtle mechanisms to ensure compliance than only the arousal of moral and collective emotions by procedures and sanctions. Elias added that the modes of punishment were adapted to modern emotional sensibilities and culture.

In line with these strands of sociolegal theorizing, jurisprudence casts the history of penal law and criminal justice as a process that has continuously limited and stated more precisely the space and role for emotions in the legal realm, thus keeping the true preserve of law—reason—unaffected by emotions as far as possible.

More recently, the secular process of restricting the space of emotions in the legal realm has taken a turn toward a “re-emotionalization” of law and a “re-assertion of emotionality,” mainly in penal law and criminal justice. This coincided with a return of emotions to the public sphere and distinct changes in the emotional culture in late modern societies, as well as a renewed scholarly acknowledgment of the importance of emotions.

Most prominent in this process is the global movement of restorative justice inaugurated by John Braithwaite's Crime, Shame and Reintegration in 1989. Restorative justice procedures—ranging from community conferences with offenders to truth and reconciliation commissions in societies with transitional justice—open up a new space for emotions in the legal realm by addressing both victims' and offenders' emotions. Importantly, they do not juxtapose emotions with the rationality of law, but acknowledge emotions as a particular kind of reason within legal procedures. Simultaneously, justice should become more “emotionally intelligent” about its effects on the affective dimension of human behavior, [Page 478]which causes compliance and thus prevents crime. Justice should simultaneously retain its preserve of reason, given new collective sensibilities and emotions surrounding crime and punishment, in twentyfirst-century societies.

...