Smart lawyers know that law often does not have that much to do with how juries and judges will make their decisions. They present arguments which, sure, include points of law. But they hammer what they have found to be the deep defaults in the human mind. Perhaps more lawyers should play that hand.
Trial judge Morris Hoffman has given this a lot of thought. Now he has published a book on it. It's "The Punisher's Brain: The Evolution of Judge and Jury." Here it is reviewed by no less than The Economist.
In "The Punisher's Brain," Hoffman contends, reports The Economist:
"People's view of others' misdoings have more to do with evolution than abstract legal philosophy ... In all their modern complexity, legal systems are a biological solution to a simple problem ..."
The problem is that there are rogue human beings who decide to turn their backs on the benefits of being a social animal. Instead they push against the norms. That might be to get what they want. Or if they are pyschopaths they don't feel any restraint not to.
Unfortunately, Hoffman doesn't have recommendations on how to deter that aberrant behavior. For much of it, we in 12-step programs observe, punishment does not halt anti-social behavior. It's the rare addict who gets something out of incarceration. The majority is determined to booze it up and/or score illegal substances after release.
Eventually, app developers might come up with signals from smartphones which can persuade miscreants to choose the social good instead of robbing the convenience store and offing the counter help.