Crime and Punishment
I previously looked at shame and guilt and the confusion between the two. One distinction was that guilt focussed on bad acts whereas shame focussed on bad agents who caused those acts.
Also previously, morality has been defined as the balancing of the wants of the individual against that of others within society. (Note: The moral code can vary between individuals within that society.) It promotes ‘good’ behaviour and discourages ‘bad’ behaviour for mutual benefit. A culture can be nurtured within a society which promotes this through:
- internal guilt – when private, and
- external shame – when found out.
The justice system institutionalizes this cultivation. It promotes ‘right’ behaviour and discourages ‘wrong’ behaviour for mutual benefit. From practicalities, it is necessarily a rule-based system, which only approximates to a society’s morals, but its blunt edges can being smoothed off by the expertise of its judges. (Note: the legal code can vary between individuals within that society.)
If the moral landscape is a surface over which height above sea level is indicative of how ‘good’ or ‘bad’ an action is in a specific location in place and time then the ‘legal landscape’ is like a canyon – there is clear separation between what is ‘right’ and what is ‘wrong’.
The justice system cultivates good behaviour through some combination of:
- Retribution: transgressors morally deserve to be punished.
- Institutional retribution: transgressors are punished by a third-party in order to prevent victims or others taking retribution, thus avoiding feuds and vigilantes.
- Deterrence: transgressors should be punished in order to deter others from offending and them from re-offending.
- Incapacitance: preventing transgressors from re-offending through incarceration/detention/imprisonment.
- Exile: preventing transgressors from re-offending by outcasting from the community.
- Rehabilitation: re-educating / re-habituating / re-integrating offenders back into the community so that they will not re-offend.
- Restoration: reconciliation between the offender and their victims, to prevent recidivism.
It transforms an internal ‘guilt’ to a very external ‘guilty’. To plead guilty is to acknowledge the wrong-doing. To be found guilty need not involve guilt on the part of the transgressor.
As there is the shameful actor / guilty act distinction, the justice system makes the distinction of:
A crime is committed when a guilty mind performs a guilty act, but not when just one of these occurs. In this double-example:
- A is planning to poison her husband at home tomorrow, once she has bought some rat poison. But her husband ends up not being at home the next day so doesn’t get poisoned. Mrs. A is not guilty of killing her husband.
- On her return from buying the rat poison, she reverses onto the drive, half-thinking about her forthcoming crime. Not hearing her, Mr A. steps back from the garden onto the drive. She drives over him and he dies. Mrs. A is not guilty of killing her husband because she drove over him without intention, recklessness or negligence.
(Obviously, the reason Mr. A was not at home the next day to be poisoned was because he was in the morgue.)
The former is an example of mens rea without actus reus. The latter is an example of actus reus without mens rea. Neither make Mrs. A guilty even though she had intention to kill Mr. A and Mr. A was killed by means of Mrs. A.
- In a moral system, wrongness can be due to a wrong act or a wrong actor (through guilt or shame respectively).
- In the legal system, criminality requires both a wrong act and a wrong actor (‘actus reus’ and ‘mens rea’ respectively).
Note: As always here, this is a simplification:
- Mens rea is sufficient for some crimes in the interest of public safety such as counter-terrorism.
- Actus reus is sufficient for some crimes in the case of ‘strict liability’ that promotes public safety in area such as food/employment standards.
Bad Brains Cause Bad Acts
Traditionally we are all held to be equally responsible before the law but it is increasingly apparent that this is not true. Our behaviour is affected by things beyond our control. Our responsibility is diminished by varying degrees. In some cases it is clear there is no mens rea – they cannot stop themselves from committing an actus reus. That is, their mind cannot stop their body. They have an inability to control themselves rather than having bad intentions, negligence or recklessness. It would be unfair to hold them responsible for the change in behaviour. Their behaviour is determined outside their mind.
Consider these cases:
- Phineas Gage is the classic, most celebrated case of a change to the brain causing a change in behaviour. Working on building railroads in 1848, an explosion blew a tamping iron (rod) straight through his head, leaving a gaping hole in his brain. He miraculously survived but his personality was changed from that of a ‘responsible’ foreman beforehand to an irreverent, drunken brawler. Friends said he was “no longer Gage”. A generally-observable physical change to the brain had caused a generally-observable change in behaviour.
- Charles Whitman personally fought his “unusual and irrational thoughts” until in 1966 he killed his wife and mother and went on a killing spree on a university campus. Beforehand he had written “After my death I wish that an autopsy would be performed on me to see if there is any physical disorder.” The autopsy revealed a brain tumour. A physical change to the brain (phenomenologically observed by Whitman but not apparent to others) presumed to have caused a dramatic change in behaviour.
- Similarly in 2000, a man suddenly developed inappropriate sexual behaviour and was convicted. The onset of paedophilia normally occurs at a young age but this man was 40. He complained about headaches and balance problems and was given an MRI scan as a result. The scan revealed a brain tumour which was subsequently removed. His sexual urges disappeared but returned in 2001. Another MRI scan revealed a regrowth of the tumour. Again, on removal of the tumour, his behaviour was corrected. Twice-over, a physical change to the brain (phenomenologically observed himself and very apparent to others) was correlated with a dramatic change in behaviour. This was achieved through the use of new, non-invasive technology on a live subject.
- In 2011, Trevor Hayes was convicted of armed robbery. But then a massive brain tumour was found to be the cause of his “aggressive and compulsive behaviour” and affected his ability to exercise self-control. The judge overturned the verdict saying
- “no court would conclude that there is a significant risk to the public now the tumour has been removed”
- “There is a direct link between the size of the tumour and his behaviour. The evidence appears to be clear.”
- “It is such an unusual scenario”
But it is not clear that the Hayes case really is so unusual. Now that we having the scanning technology, perhaps everyone convicted of a serious crime should have their brain scanned?
Hayes didn’t ask to have a brain tumour which then caused his criminal behaviour. Therefore, it seems wrong to punish him. Fortunately for him, we live both in enlightened times and in times of sufficiently advanced scanning technology.
Possibly in the future, there will be even better technology and we will be able to detect more subtle physical abnormalities of the brain. Purely speculatively for example, a ‘connectometer’ (‘connectome-meter’) might be able to create a coarse connectome of the brain which can be compared against reference connectome maps from which we can physically diagnose mental conditions that are more difficult to diagnose psychologically (example: schizophrenia). It would then seem wrong to punish them and we should pity those such persons who are in prison now because we do not have that technology.
And the net can be spread wider. Where does this end?
It naturally leads to legal defences trying to use neuroscience to make a physical rather than psychological connection to the crime: the defendant is not guilty:
“My brain made me do it!”
Good Brains Cause Bad Acts
So, bad brains can cause bad acts. But good brains can also cause bad acts – if there is a bad environment. An example of a direct relationship is that between criminal behaviour and the exposure to lead in paints and fuel.
But an argument can be made for much wider application…
Clarence Darrow was the high-profile agnostic defence lawyer in the famous ‘science versus religion’ Scopes Monkey Trial of 1925 which challenged the ban on teaching evolution in schools. The year earlier, he had defended the notorious ‘Leopold and Loeb’ pair in another ‘trial of the century’. Inspired by Nietzsche’s concept of Übermensch acting above the law, the two rich-kid prodigies applied their superior intellects to committing a ‘perfect crime’ by murdering a 14-year neighbour. They failed. In court, Darrow’s task was to get the judge to incarcerate them rather than letting the jury hang them.
Talking of Richard Loeb in his closing speech, Darrow said:
“Nature is strong and she is pitiless. She works in her own mysterious way, and we are her victims. We have not much to do with it ourselves. Nature takes this job in hand, and we only play our parts. …
“What had this boy to do with it? He was not his own father; he was not his own mother; he was not his own grandparents. All of this was handed to him. He did not surround himself with governesses and wealth. He did not make himself and yet he is to be compelled to pay.”
Loeb had the best of brains in what was outwardly the best of environments but circumstances led him to commit the worst of crimes. Darrow’s response on behalf of Loeb was effectively:
“My environment made me do it!”
Darrow succeeded. The judge sentenced Leopold and Loeb to Life Plus 99 Years.
The ‘self’ argument
“My brain made me do it!”
and the ‘not-self’ argument
“My environment made me do it!”
take us to determinism. The act was determined outside of ‘my’ control, where the ‘my’ here refers to ‘mind’. But if the brain is the mind and the physical world determines what we do, whether it is the physics of our insides or the physics of our outsides, it makes no difference.
A ‘physicalist’ tries to explain everything ultimately in non-intentional (‘mechanical’, ‘physical’) terms. Whether things are specifically deterministic or not is actually not particularly important. What is important is that some phenomena are not ring-fenced as being beyond such a physical explanation. Attempts are made to explain ‘mind’ in physical terms.
All this is a problem for Cartesian dualists and ‘libertarians’:
“If the world is deterministic then there is no free will and hence we do not have moral responsibility.”
Libertarians equate Free Will and Indeterminism. Others differentiate. Conventionally:
- Free Will and Indeterminism produces ‘Libertarianism’: events are not always causally determined. We are free to ‘make a difference’.
- Free Will and Determinism produces ‘Compatibilism’: the world is deterministic yet we still claim there is ‘free will’.
- No Free Will and Determinism produces ‘Hard Determinism’: Liberty is a practical consideration, and
- No Free Will and Indeterminism produces ‘Hard Incompatibilism’: determinism is a red herring. We cannot have free will either way.
The legal system is intimately associated with Dualism and Libertarianism: ‘mens rea’ (a guilty mind) is the cause of ‘actus reus’ (a guilty act).
A physicalist could subscribe to any of the non-libertarian positions 2, 3 and 4 above:
- We still have ‘Free Will’ but ‘new-style’ Free Will is just a bit different from what we have previously understood ‘Free Will’ to be. We will still basically judge people as if they had ‘old-style’ Free Will.
- The moral/legal system will need to be modified but it will take time for the changes to happen.
- Whether the world is deterministic or indeterminate, the philosophical arguments around Free Will have little bearing on the practical considerations of the judicial system. Essentially, Free will is irrelevant.
And a physicalist obviously would not subscribe to dualism. As I have said previously, the dualist concept of ‘free will’ does not translate across to physicalism. From a physicalist perspective, it just doesn’t make sense to say ‘there’s no such thing as Free Will’. Free Will’s physicalist equivalent is a combination of:
- ‘Conscious Will’, the conscious feeling that an agent has caused something that they have willed when they see the corresponding action, and
- ‘Freedom’ , itself a combination of an ability to predict and yet be unpredictable oneself.
For physicalist ‘Conscious Will’:
- The conscious feeling of having caused something can be related to ‘mens rea’, and
- The corresponding action can be related to ‘actus reus’.
But it is not possible to separate ‘mind’ and matter. Ultimately, there is only what might be described as ‘corpus reus’ – the body is guilty. Mind/brain is embodied and cannot be considered separately from the body. ‘Moral responsibility’ lies within the entire person.
“It was the body that is me that did it!”
This understanding of responsibility will not be the same thing as a libertarian would understand from the same word.
Moral and legal responsibility is typically associated with the ‘ability to control’ but responsibility is also associated with someone or something being the ‘primary cause’ and held ‘accountable’, without there being ‘control’.
Loeb’s interest in crime novels and habit of lying supposedly started as a reaction to the strict disciplinarian teaching approach of his governess, Emily Struthers. It is possible that if he had had a different governess then this first step towards murder would not have been taken.
This is the ‘butterfly effect’: could a butterfly flapping its wings in Brazil cause a tornado in Texas? Contrary to what is frequently said, the answer is ‘no’. It is true that:
- a deterministic world with a butterfly in a precise point in space and time could result in a tornado somewhere else later on, whereas
- the very same deterministic world with the exact same starting point except for the butterfly would not result in the tornado occurring.
But the point of the ‘butterfly effect’ is that it never is possible to recreate the same starting point with sufficient accuracy and so we will never know. It is only possible in computer simulations. And even in those computer simulations, we would not say that the butterfly is the ‘cause’ of the (virtual) tornado any more than a small difference somewhere else (such as the presence/absence of a leaf) would be. Countless other minor changes would also have led to a substantially different outcome, in time.
But what would have happened if Richard Loeb was substituted by someone else driving around the streets of Chicago with Nathan Leopold on the afternoon of 21 May 1924?
Based on our ability to predict consequences, substituting Loeb has a greater chance of changing the fate of Bobby Franks more than anyone apart from the possible exception of Nathan Leopold. The chance is far higher than if Struthers was substituted. The pair had the greatest effect on the bad consequences and hence we say that they are responsible. This is regardless of any moral capacity (mental capability), any existence of Free Will or otherwise. They are irrelevant. If we want to prevent another occurrence of such an event, it is them that we first examine and this is what we mean by being responsible for an act.
The traditional legal system is wrested on dualist foundations. It makes a distinction between intentional and unintentional actions and punishes freely-chosen intentions that are bad.
Centuries ago, all human behaviour was attributed to the mind. For example, epileptics were considered to be possessed by the devil and punished accordingly. Over time, we have slowly shifted towards the physicalist position that all behaviour is determined by matter and we no longer see responsibility in terms of choice and blame (there is the transition from Dualist ‘mens rea’ and ‘actus reus’ to Physicalist ‘corpus reus’).
Apportioning responsibility is then a consequentialist activity that is part of identifying how similar undesirable situations can be prevented in the future. It is a risk-based approach.
We will still ‘punish’ epileptics when there is neither mens rea nor actus reus. For example, we will still ban them from driving. But this is no different from punishing others for circumstances beyond their control. For example, the old, the young and many disabled are also ‘banned’ from driving (we might question the use of the word ‘banned’ but the practical effect is the same). They could all protest:
- ‘It’s not fair! I didn’t ask to be born with epilepsy.’
- ‘It’s not fair! I didn’t ask to have poor eyesight / slow reaction times / a raised chance of having a heart attack in my advanced years.’
- ‘It’s not fair! I didn’t ask to have poor impulse control in adolescence.’
There is ‘punishment’, but without the sense of guilt, shame or blame.
And then we also punish others for what we feel should be within their control but apparently isn’t, such as drunk driving. But they might respond:
- ‘I didn’t ask to be born genetically predisposed to have poor impulse control.’
We balance the risks:
- A young driver has good coordination and fast reaction times but poor impulse control and a lack of experience.
- A mature driver with infrequent epileptic seizures may have high skill, good coordination, good impulse control but there is a significant risk of causing an accident as a result of having another seizure.
- An elderly driver may have high skill and very good impulse control but have deteriorating coordination, eyesight and reaction times. There may also be significant risk of loss of control (heart attack).
- A middle-aged drunk driver may be better than the above in all respects except in their poor impulse control and recklessness.
The drunk driver may be no more of a risk than a moderate case of one of the other risk categories. There needs to be an assessment of risks in all cases, considering practical preventative measures in a non-judgemental way.
Prevention and Deterrence
To prevent criminal activity, we can try to improve individuals – such as removing their brain tumours! But there is rather more scope in improving their environment into which the individuals grow, over a long period of time.
- The physical environment can be improved: such as the lead reduction example
- The cultural environment can be improved: such as educating and integrating into a better culture, plus
- The Intellectual environment can be improved: don’t let impressionable young boys read Nietzsche!
But sanctioning transgressors is a major way of preventing crime. I am avoiding the word ‘punish’ here; it does not help. The sanctioning should not be for retribution but for deterrence.
Treatment not Punishment
The convicted mentally ill are treated in a ‘secure hospital’ rather than punished with a prison sentence. But with determinism, all the convicted are deemed to be ‘ill’ to some degree. All prisons become ‘secure hospitals’. We become more compassionate towards convicts. We move away from retributive justice. We are not deliberately trying to make life worse for them. Detention is purely a practical consideration – for the benefit of wider society (protection and deterrence) as well as that of the convicted individual (reform). But there are economic consequences. Incarceration is expensive and treatment is even more so. It seems absurd to provide an environment for convicts on the inside that is better than that for some non-criminal poor on outside – this is difficult to justify. And with this argument, there is an incentive to commit crime – negating deterrence. It is better to spend money improving life for the worst-off outside. Then as standards of living improve on the outside, what is acceptable for the criminal inside will improve too. This is purely a practical issue.
After the exposing of corporate misdemeanours, executives cannot respond with:
‘It’s not fair! I didn’t know anything about it. How can you blame me?’
even if they truly did not know. Executives are not directly involved in particulars but they should still be expected to take responsibility and be held responsible because it is part of their job to ensure that those below them are acting appropriately. Despite there being no mens rea, they need to be sanctioned as a deterrent to other executives to motivate them to act appropriately.
It is commonly felt that driving when intoxicated is significantly worse when it results in injury to others than when it does not – that reckless mens rea without actus rea is less blameworthy than reckless mens rea with actus rea. If we look at future risk, the recklessness of the driver is the same in both cases and so, according to the argument here, they should be sanctioned in the same way. The only real difference is whether the risk does or doesn’t pay off i.e. luck – ‘moral luck’!
Moving Away from Mens Rea and Actus Reus
In both the examples above (Executive Responsibility and Moral Luck), there is a moving away from the requirements for both Mens Rea and Actus Reus to a risk-based ‘Corpus Reus’ approach that is:
- less blameworthy: responsibility is about identifying where to look for preventative solutions and not about control and retribution.
- more compassionate: we are more sympathetic towards criminals if we believe they have less than ideal control over events in a physical world.
(But we must recognise that it is also potentially dangerous in going too far in sanctioning.)
- Mens Rea is associated with (idealized) rational decision-making
- Actus Reus is associated with specific acts being good or bad.
- Corpus Reus is associated with the embedded virtue of the individual. As such, it is consistent with virtue ethics.
Getting Rid of Blame
There is nothing remarkable here in the argument that we should abandon blame, punishment and retribution. It is an obvious consequence of moving away from a Dualist to a Physicalist justice system. For example, take these three Neuroscientist ‘heavyweight’ opinions:
Joshua Greene (he of the ‘From Neural Is to Moral Ought’ paper) and Jonathan Cohen:
The Return of Blame
And yet, blame may still have a role to play in a purely practical consequentialist approach to justice. It may be ‘unfair’ to blame people for do things they could not have not done but cultivating blame in a society will provide some deterrence and hence promote the self-regulation of people for best mutual well-being. It has the same role as ‘shame’ and ‘guilt’.
It seems that blame has been kicked out the front door of morality, only to be let back in through the back door of pragmatism.
The same is true of its opposite, praise.
And with this, we seem to end up with a ‘Hard’ position:
- If there is Free Will, we blame agents for the bad actions they cause.
- If there is no Free Will, we still blame agents for their bad actions.
- If there is Free Will, we praise agents for the bad actions good cause.
- If there is no Free Will, we still praise agents for their good actions.
The issue of Free Will is irrelevant. As Greene and Cohen said:
(This is the nineteenth part of the ‘From Neural Is to Moral Ought’ series.)