Judicial Punishment in a Neuroscientific World
We’ve witnessed a steady stream of books and articles about the relationship between a Neuroscience and judicial philosophy. Although I am far from an expert, I’ll describe what I believe are the rationales for legal punishment. This will be followed by personal reflects the legal system, Neuroscience and Psychology1. Lets start with a criminal act. An individual commits a crime, and may deserve punishment. Considerations for punishment include:
- Did the defendant understand alternative courses of action and choose the anti-social, criminal act?
- Did underlying biological factors limit the defendant’s choice?
- Is the defendant a threat to society and should be removed from society to remove the threat?
- Will punishment help teach the defendant that “crime does not pay”.
- Will punishment serve as a deterrent to others? (also, “crime does not pay”).
- Will (should) the punishment help placate desire for revenge from victims and society?
- Will incarceration lead to rehabilitation, teaching better moral values and respect for social rules?
- Are there mitigating circumstance? For example, personal or family survival may have come into conflict with social rules.
- Does the punishment support and promote the societal values of fairness, love, freedom, and life?
Before discussing these individually, it’s important to point out that there are numerous rationales embedded our judicial system. Eliminating or altering some does not invalidate the rest. Final judgements should be an integration of these factors.
Data from Neuroscience and Psychology influence several of these criteria.
- Free Choice and Free Will. Since the early studies of Libet and more recent work that supports Libet’s results, there have be questions about whether conscious decisions cause, or even precede, volitional action. Separately, philosophical work, based on a physically determined universe, suggest that even if consciousness determined voluntary action, the content of consciousness and choice are pre-determined; an idea going back at least two centuries to “Laplace’s demon“. Although these are interesting discussions, I don’t believe either has direct impact on the judicial decisions about responsibility. My sense is that the current judicial concept of free will — did the defendant recognize alternative choices — is completely sufficient. Our personhood is, in part, defined by our behavior. The behavior an individual engages in at any moment in time depends on an internal evaluation of needs and values. Although conscious will may not be involved in every muscle twitch, it is certainly involved in selecting major goals and courses of action. As long as the individual has an awareness that there are alternative courses if action, if he/she chooses an illegal action, he/she is responsible.
- Biological Constraints and Limitations. What if a defendant has special biological condition, such as a tumor of the amygdala causing a predisposition to violence? What if the tumor is removed, removing the predisposition? What if the individual has very low IQ? These are difficult cases. My sense is that these should be considered mitigating factors, but do not preclude guilt unless the person does not understand alternative courses of action or the harm his action may incur. In situations were the putative causal factor is reversed (for example, surgery to remove a tumor), this should be considered in rehabilitation. There are also biological predispositions that are common to almost all humans. For example, there is a human pre-disposition for revenge. These should not mitigate resposibility or guilt
- Conditioning and Learning. Three of the rationales above deal with conditioning (4, 5 and 7). These are the domain of psychology. What works and doesn’t work are important empirical considerations.
- Revenge is accepted as an inborn, natural reaction in our species2. This is not a justification. On the contrary, I feel that revenge should play no role in a judicial system. The establishment of state-run judicial systems, and the (partial) elimination of revenge and vigilante justice is a great victory for civilization and peace. Victims cannot be on juries3.
- A society’s values are reflected in its laws and system of justice. In the words of John Dewey, “the best way to judge a culture is to see what kind of people are in the jails.”4
- Personal Identity5 can be described as an apparently continuous series of episode memories that that add up to an individual’s life history. Although insights into the biological substrate of and individual’s episodic memories, these do not, yet, impact judicial decisions. An individual is responsible for his or her actions, past and present. Actions are the output of brain, body and mind. They cannot be separated; all are responsible.
1 Mea Culpa. I am not an expert in our judicial system or philosophy. As a neuroscientist and citizen I’ve read lots of stuff on these topics over the years. I decided to leave out citations, thinking that: a. I don’t remember where I got some of these ideas; b. I don’t recall any specific book or article that covered all of these; and c. any citation list would be unbalanced. d. These are jumbled ruminations, collected over the years. I welcome — encourage — guidance and discussion.
2 Various works by Jonathan Haidt describe biological predispositions for “moral” action, including a predisposition for revenge. See, for example, “The Moral Emotions“.
3 I’m reminded of Michael Dukakis’ disastrous presidential debate gaff. When asked what he would do if his wife were raped, Dukakis replied in a dispassionate tone that he would rely on the courts. Dukakis didn’t think through human reactions, and the strong desire for revenge. The answer should have been, “Of course I’d want to kill the rapist myself, with no trial, with my bare hands, and inflict pain. But we are fortunate to live in a society that has gotten beyond revenge, and we are far better for it. I hope I would not act out on my desire for revenge. Correctly, I would, be disqualified from being judge or jury in the trial. Although I assume I would be forever damaged, acting on instincts for revenge would be a return to barbarism, and would result in much more harm than good.”
4 As quoted by J. Stanley and V. Weaver in the NY Times, Is the United States a ‘Racial Democracy’?
5 This description of personal identity can be traced to John Locke. In addition he said that if there is a memory break, as in amnesia, the person is not responsible for acts committed in the amnestic interval.