Creating Freedom. Raoul Martinez

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      Punishment

      The idea that people who do bad things deserve to suffer is deeply embedded in our culture. It has been expressed over the centuries through the doctrine of ‘an eye for an eye’. In practice, religious traditions have gone far beyond the spurious equality this implies. The Bible has often been interpreted as prescribing capital punishment for transgressions such as adultery, sodomy, blasphemy, breaking the Sabbath, worshipping other gods and cursing a parent. The Koran supports capital punishment for, among other things, ‘spreading mischief’, interpretations of which have included treason, apostasy, adultery and homosexual behaviour. The belief in a divine system of retribution and punishment, that unrepentant sinners deserve to suffer for eternity in hell, remains a core tenet for much of humanity.

      Echoing religious doctrine, philosophers, judges and political leaders have for millennia claimed that the primary purpose of punishment is retribution, in which the suffering of the perpetrator is an end in itself.¹ This remains a popular view. Opinion polls on the death penalty give a good indication of contemporary attitudes. A YouGov survey in 2014 found more UK citizens in favour of reinstating the death penalty than against, while a 2010 survey showed that 74 per cent would support the death penalty ‘under certain circumstances’, though not for all murders.² In the US, support for the death penalty hovers at around 61 per cent.³

      This cultural commitment to retribution may be rooted in human nature. When someone engages in the act of punishing a perceived cheater or exploiter, brain scans have revealed increased activity in the ‘pleasure centres’.⁴ There is even evidence that babies as young as eight months exhibit a desire to punish perceived wrongdoing.⁵ Evolutionary psychologists argue that punishment evolved as a means of preserving mutually advantageous forms of group cooperation. Drawing on the theory of reciprocal altruism, they claim that punishing ‘cheats’ who receive benefits without bearing any of the costs acts as a powerful incentive for cooperative social behaviour.

      Whatever the evolutionary reasons for developing an instinct for punishment, it is worth remembering that natural selection is an amoral process. Nature, as Tennyson put it, is ‘red in tooth and claw’. To the extent that they have an evolutionary basis, righteous indignation and the thirst for revenge are part of who we are only because they enhanced the survival of our ancestors long enough for the associated genes to find their way into subsequent generations. Robert Wright, author of The Moral Animal, a book on the evolutionary roots of our moral instincts, remarks that perhaps ‘The intuitively obvious idea of just deserts, the very core of the human sense of justice . . . the fury of our moral indignation, the visceral certainty that . . . the culprit deserves punishment [is no more than] a by-product of evolution, a simple genetic stratagem.’⁶

      Viewing our instincts with a degree of scepticism – questioning, analysing and appraising them in light of other ideas, beliefs and values – is essential for social progress and self-knowledge. Moral anger can be a dangerous force. The sense that we have the right to inflict suffering on a perceived wrongdoer has justified some of the most inhumane practices in history, from stoning and impaling to burning at the stake, disembowelling and decapitation. It has also shaped our criminal justice system, moulding it to conform to stubborn intuitions about just deserts, retribution, blame and responsibility.

      The most advanced legal systems on the planet are committed to the idea that most people, most of the time, enjoy the kind of freedom that makes them truly responsible for their actions. According to the US Supreme Court, ‘belief in freedom of the human will’ is a ‘universal and persistent’ element of the law, and ‘a deterministic view of human conduct . . . is inconsistent with the underlying precepts of our criminal justice system’.⁷ Explicit commitment to ‘freedom of the will’ can be found in a number of court rulings and in the work of many legal scholars.⁸ It is embedded in the foundations of the criminal justice system, the same foundations that are now cracking under the weight of scientific knowledge.

      In response to this pressure, some legal theorists have staked out a fall-back position. In the eyes of the law, we are practical reasoners: through conscious deliberation we decide how to act in order to achieve our goals. According to legal scholar Stephen J. Morse, and many others who share his view, to hold people responsible for their actions we do not have to establish whether they possess sufficient ‘freedom of the will’, only that they have sufficient rationality. As he puts it: ‘rationality is the touchstone of responsibility’.⁹ If a crime reflects clear conscious intentions, this is what counts (never mind the deeper origins of those intentions). Morse acknowledges that free will may be illusory and determinism true, but rejects the idea that this has anything to do with responsibility, arguing that as long as a person’s rational capacities ‘seem unimpaired’ they should ‘be held responsible, whatever the neuroscience might show’. In practice, courts need only presume that with few exceptions ‘adults are capable of minimal rationality and responsibility and that the same rules may be applied to all’.¹⁰

      This view of responsibility sheds light on many of the procedures employed in the contemporary courtroom but it is fundamentally confused. It concedes that our behaviour may ultimately be the product of forces beyond our control, yet claims we can still be held responsible for it.¹¹ It smacks of trying to have your cake and eat it. As we have seen, rationality and other forms of competence certainly increase our ability to achieve goals and understand the consequences of our actions, but they do not make us responsible for the goals we choose to pursue – that depends on the way we are, and for that we are not responsible. To repeat an earlier formulation: a rational psychopath may make morally horrendous choices, but they will not include choosing the brain of a psychopath. The implications of neuroscience are clear: biology cannot be separated from behaviour, and we do not choose our biology. In some cases the courts already accept this – as demonstrated by the growing list of ‘syndromes’ and ‘disorders’ being employed as a legal defence – but they remain exceptions. Given the huge variation in genetic potential, life experience and social opportunity that we see in the world, to presume that, with few exceptions, ‘the same rules may be applied to all’ is plainly a recipe for injustice, not a solution to it.

      As a society we can agree to define responsibility any way we wish – in terms of rationality, annual income, educational attainment or even height. But changing definitions does not alter the underlying facts. Relaxing the criteria for responsibility may help to conceal the cracks snaking through its foundations, but, for the modern criminal justice system, these problems will only become more apparent with time. Although the best of science and logic have shown it to be a meaningless question, the courts continue to ask whether lawbreakers are deserving of punishment, whether they are blameworthy. As long as this question beats at the heart of criminal justice, its methods will remain irrational and its outcomes unjust.

      It does not have to be this way. Instead of submitting to misleading intuitions, our justice system could yield to the findings of science and the demands of reason. This СКАЧАТЬ