Politicians, armed with opinion polls for support, rush to enact crime bills where sentences grow steeper, where higher minimum sentences are made mandatory, and where the death sentence is applied in more cases. Despite apparent support from suspect polls, the empirical question remains: Does community sentiment favor “steeper-firmer-deadlier” punishments that are disproportionate to the act and invariate to the actors, or does sentiment favor individualized and proportionate punishment? In experiments dealing with recidivist, accessory felony-murder, and perpetrator-by-means cases—where the law asks for excessive or invariate punishment—subjects favor proportional and individualized punishment and judge defendants based on perceived culpability.

Criminal law remains divided on the question of whether objectivity or subjectivity should be its dominant basis. Does liability begin with an objective act or harm, or with subjective intent? In the first experiment, dealing with the conundrum of impossible act cases, the question is, Will respondents convict on subjective grounds (where intent to murder is clear), even when a manifest criminal act and harmfid consequences are absent? The results show that they do convict, though their subjective preference moderates and even reverses with certain types of mistakes, or when the potential harm, though not the actual harm, is perceived as high. In the second experiment, dealing with mistaken act and self-defense cases, the question is, Will subjectivity be determinative, or will respondents weigh objectivity more as the mistake gets more unreasonable? The results show that objectivity is weighed heavily, as fears of a plunge into subjective waters prove groundless. Without legal guidelines, respondents navigate these conundrums by shifting their objective vs. subjective balance point, guided by good common sense.