There are several issues in the exchanges in Some Realism about Punishment Naturalism and Realism, Punishment, and Reform. The primary issue is the degree to which individuals’ moral intuitions differ regarding what counts as a “crime,” the moral magnitudes of different crimes, and what type and duration of punishment a given crime deserves. A closely linked issue is the degree of fixedness versus malleability in a person’s judgments on these matters, and what processes produce whatever malleability exists. Caught up in these issues is an evolutionary psychological stance that is at least initially interpreted as suggesting universally shared immutable intuitions but seems to be converging on agreement, stated by Professors Donald Braman, Dan Kahan, and David Hoffman (“BKH”) as follows: “[C]ognition is, to be sure, shaped by a host of demonstrable and perhaps nearly universal cognitive biases and heuristics, many or all of which are the product of evolutionary pressures or accidents. [We] view these innate cognitive traits as interacting with and generating a variety of social meanings that ultimately determine our understanding of and reaction to wrongdoing.”
Paul Robinson and I have suggested that people in a culture have well-developed intuitions about what constitutes a morally wrong action that requires punishment. Criminal codes that are broadly in agreement with those shared intuitions are seen as enacting justice and gain credibility as guides to moral behavior that citizens will be motivated to follow. Those seeking to change portions of the legal codes—often a morally appropriate enterprise—should seek to persuade citizens of the moral superiority of the changes proposed, rather than simply engage in elite efforts to rewrite the legal codes. The latter move risks delegitimizing legal codes if citizens perceive the novel codes as consistently and seriously at odds with their moral intuitions. Given the particular psychological character of the often-intuitive judgments that citizens form about wrongs, changing them is difficult, but possible in several ways.