For centuries, penal theorists have debated two key criminal justice questions: justifying state punishment power and determining proper punishment levels. Moral philosophers offered several theories to address these questions. Over time, calls emerged to move beyond theories and to consider community views on punishment rationales in criminal law and policy design, an approach that gained support alongside meaningful critique. Concurrently, social science advancements enabled empirically deepening understanding of public attitudes about punishment, largely through surveys and experiments.
One domain, however, remained untouched by those calling to assess lay intuitions of justice: social media. Such oversight is puzzling in light of social media’s potential to reveal public perceptions without scientific intervention. This Article thus engages with two main questions. First, a methodological question: whether social media discourse can be used to reflect laypeople’s attitudes about criminal culpability and punishment, and second, a normative question: should it be used for these purposes?
To answer these questions, the Article first synthesizes current scholarship about the promises and challenges of using social media data to study human behavior and applies it to the context of punishment justifications. The Article moves beyond theory, however, and utilizes recent technological developments in the field of Artificial Intelligence (“AI”) and Law and Natural Language Processing (“NLP”) to offer a novel empirical exploration of the potential promise of social media discourse in assessing community views on justice and punishment.
While our findings offer some support for the potentiality of using social media to assess laypeople’s attitudes regarding punishment, we also expose the complex challenges of utilizing such data, particularly for penal law and policy design. First, due to a host of methodological challenges, and second, due to normative challenges, particularly social media’s polarizing nature and the ambiguity around who’s voice is amplified through these platforms. The Article thus urges caution when leveraging social media to evaluate the public’s perceptions of justice.
* Associate Professor of Law, Villanova University Charles Widger School of Law, JSD (‘20), JSM (‘13), Stanford Law School.
** Postdoctoral Researcher, Department of Computer and Information Science, University of Pennsylva-nia, & Incoming Assistant Professor, Department of Information Systems, University of Haifa, PhD (’20), Technion – Israel Institute of Technology. We would like to thank Elliott Ash, Gilat Bachar, Michelle Dempsey, Renana Keydar, Roi Reichart, Hadar Dancing-Rosenberg, and the rest of the par-ticipants at the “Law in Virtual Spaces” workshop, the Richmond Junior Faculty Forum 2023, and the panel participants “Normatively Interrogating Punishment 1: Theorizing About the Law” at the Law and Society Annual Meeting 2023, for helpful comments and suggestions. Mary McDermott, Liam Reeves, and Dave Goulden-Naitove provided excellent research assistance. We are also grateful for the editorial board of the Illinois Law Review for their diligent work on this piece. Professor Dror would also like to thank the US Defense Advanced Research Agency (“DARPA”) for their financial support. The views and conclusions contained herein are those of the authors and should not be inter-preted as necessarily representing the official policies, either expressed or implied, of ODNI, IARPA, the Department of Defense, or the U.S. Government.
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