Emotions and criminal justice

Abstract

During the last decade, a process of ‘emotionalization of law’ has spread around the globe, changing the criminal justice system in many ways. Anger, disgust and shame are perceived as ‘valuable barometers of social morality’ and brought back to criminal procedures. The ‘return of emotions’ to penal law and criminal justice is linked to and illuminates the moral imagination of late modern societies. This article seeks to address two facets of the ‘return of emotions’ to criminal justice. The first part explores the changes in the public sphere and in the pattern of emotional culture in late modern societies that are responsible for the reemotionalization of the penal realm. In the second part, problems that emerge in the criminal justice system are addressed. Bringing emotions back involves profound problems that go beyond the mere instrumental use of emotions in criminal justice, or a restricted perspective of ‘what works’. Three ‘core’ problems—and associated—questions are discussed: first, are emotional reactions towards crimes ‘natural’ or ‘primordial’ such that they should occupy a prominent place in criminal justice that has been unduly ignored? Second, and relatedly, do emotions constitute our moral principles? Finally, should institutions elicit or even require ‘authentic emotions’ from individuals? These questions are addressed within the framework of contemporary emotion theory and the consequences of this perspective for the ‘use’ of emotions in criminal justice are discussed.