Abstract. Research on the motives individuals have to punish criminal offenders suggests that punitive reactions are primarily driven by retributive, not utilitarian, motives. To explain this, several authors have suggested a dual process model (DPM) of punitive reactions. According to this model, punitive reactions are the product of two distinct types of processing (type I and type II), which differentially support retributive vs. utilitarian punishment motives. In response to cases of criminal wrongdoing, type I swiftly outputs a retributive reaction. In contrast, for utilitarian motives to play a role, this reaction has to be overridden by type II processing, which only happens rarely. In this article, we argue that despite its popularity, there is little concrete evidence for the DPM. We then report the results of a preregistered study investigating the effect of increased processing effort on retributive vs. utilitarian punitive reactions. We argue that the results fail to support the DPM.

What productive role can guilt play in criminal law? Some authors have argued that in the context of a broader penance theory, guilt can offer a plausible justification for criminal punishment. In this chapter, I will argue that such a justification fails. It does so, first, because it grants the state too much authority over the inner feelings of offenders, and second, because such a justification of criminal punishment solely based on the penance rationale allows for disproportionate punishment. Nonetheless, I will argue that guilt within a penance account can play a different, albeit more limited, role in criminal law, namely as a justification for addressing criminal wrongdoing via restorative justice. In restorative justice settings, the productive potential of guilt can be developed, as such settings promote the expression of feelings of guilt, reconciliation between the affected parties, and reparation for the victim.

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