Crime and Punishment

I have accepted with most neuroscientists that free will is an illusion--like self, soul, and spirit as separated substances. It is probably a necessary and useful illusion that can be traced to an evolutionary adaptation.

In saying this I do not intend to diminish, but instead enhance, responsibility for our actions. Responsibility is the ability to respond to our situation as we encounter it, to ourselves as we understand ourselves, and to others with whom we interact. We continually respond to situations and persons we meet based on who we think we are and want to be.  But our response is conditioned genetically, environmentally, and by our personal experience.

Our responsibility is always limited. How limited? There is a legal definition that is based on a common sense understanding that is relative to different societies. Crimes of passion are less imputable in France I am told. And now the new neuroscience is raising questions as to whether some of the most heinous of crimes, serial killing, pedophilia, drug incentivized murders, are more mental illnesses than criminal offenses and should be dealt with accordingly. No one any longer condemns Jean Valjean for stealing bread because his family was hungry. Or do the Javerts still exist? They sure seem to exist in the "three strikes and your out" crowd. For righteous executioners, it is not the severity of the crime but the affront to the moral and legal order that must be punished.

Punishment for crime has been a difficult political issue. And the definition of crime is a difficult ethical issue. And the two are connected.

Punishment is justified as keeping society safe from predators, as a deterrence to crime, or as a way to balance a negative act with another, i.e. vengeance. Vengeance was probably the evolutionary adaptation for protection of society and deterrence of antisocial behavior. Without a government with police powers, vengeance was a way to prevent the violation of those we respect and love.

But it was a wise person who said that "vengeance is mine, sayeth the Lord" meaning that if we insist on vengeance we will never get out of the cycle of violence. Let the higher powers deal with getting back at bad people. If we keep reacting, we are in a trajectory that will destroy our community and ourselves.

The organization into clans and then nations led beyond vengeance to protection of society through laws and penalties. Nations establish laws to limit the predatory instinct and protect the state that is working for those who are in power. When people or groups threaten that state of affairs, they are considered criminals to be contained. Nations protect themselves against deviants who are a danger to citizens who are exercising their rights to happiness. Killing deviants is one solution. Incarcerating them so they cannot interact with others in society is another.

But the effects of incarceration are under review: the costs to government and taxpayers and the reinforcement of criminal activity in society. Both make us wonder about our policy towards crime. The amount of incarceration that makes the US the largest prison in the world spending the most tax funds for incarcerating people and condemning especially young people to continue a life of crime seems downright stupid. Of course stupidity was never an obstacle to legislative action.

Freedom, including the ability to respond, is both conditioned and progressive. Our images, desires, and actions are under the influence of our genetic makeup, the environment we are born into, and our personal experiences. But this does relieve us of responsibility. It obligates us to take more and more responsibility. Freedom is not given by evolution or by our nature. But the ability to achieve freedom and responsibility is one of the unintended results of our evolved nature. We can use this ability to become a new, improved humanity or to revert to the old warrior clans that we were.

While self defense and the extension of self defense to family, clan, nation, and species is natural, policies of punishment of deviants that actually threaten our future are not. Putting people in situations that reenforce destructive behaviors and supporting a culture that leads to its own dissolution seems hardly rational. But that is often what we are doing in our present criminal injustice system.

The efforts toward restorative justice that focuses not on vengeance or individual tit-for-tat, but on creating a place where former victims and former violators are empowered to act in concert is the way to a innovative and productive social order. Yes, we have the right to protect ourselves, our families, and our communities even using force and violence. But we also know by experience and by history that violence leads to violence and that our best hope is to get to the place where violence is rejected by all.

It is one thing to use violence to stop an immediate threat to life.  It is another to justify or legitimate violence through war, torture, incarceration, and punishment, especially capital punishment. Violence is  the failure of our highest ability to speak and act together. It may be necessary, but it is still a failure of the human project. A society or nation that legitimates violence and especially the killing of human beings for whatever reason is a failed society and nation. Most of the nations of the world get that and have denounced not only slavery and human trafficking, but also capital punishment. Capital punishment has always been cruel because it depersonalizes persons by making objects of them. Now, thanks to enlightened thinking, it is unusual--except in nations where the right to life has been diminished.

Back to the original ethical question. Is a person really free when he commits a crime? The best of neuroscience says that we do not know, but probably not. But that does not take away personal responsibility and the right of a society to defend itself against predators. It does however point to a different solution than eye for eye vengeance. Then solution is not getting back at the violator, as good as that might feel. The solution is creating the place where victim and violator are equal participants in mending the community that has been broken. It is this way that they and we achieve greater freedom and responsibility.