The Legitimacy of Judicial Responses to Moral Panic: Perceived vs. Normative Legitimacy

Miriam Gur-Arye*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

3 Scopus citations

Abstract

In some instances, the criminal justice system is affected by a moral panic; that is, by an exaggerated social reaction to an assumed threat to moral values. When influenced by moral panic, courts demonize defendants and aggravate punishments. Are such responses legitimate? This article argues that by contrast to legitimate condemnation of criminal conduct, demonizing defendants ought never be legitimate. The legitimacy of aggravating punishment requires distinguishing between the sociological concept of legitimacy (“perceived legitimacy”) and the moral concept (“normative legitimacy”). Aggravation of punishment in response to moral panic might be perceived as legitimate since it expresses public perceptions about the severity of the threat to a social value, even when these perceptions are exaggerated; however, punishments that are proportionate to such a perceived, exaggerated, threat to a social value are unjust and unfair, and therefore are normatively illegitimate. When the panic subsides, courts tend to return to lower levels of punishment. The subsidence of the panic enables one to realize that a gap between perceived and normative legitimacy has been created during the panic. Should and can the gap be bridged retroactively in order to gain full legitimacy? One way to bridge the gap is to grant clemency that will reduce the punishment of defendants whose sentences were exaggerated unduly during the panic. The article proposes a more radical mechanism that allows for sentence re-evaluation in cases of moral panic.

Original languageAmerican English
Pages (from-to)141-163
Number of pages23
JournalCriminal Justice Ethics
Volume37
Issue number2
DOIs
StatePublished - 4 May 2018

Bibliographical note

Publisher Copyright:
© 2018, © 2018 John Jay College of Criminal Justice of The City University of New York.

Keywords

  • criminal justice system
  • moral panic
  • normative legitimacy
  • perceived legitimacy

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