Judges who learned that a convicted assailant was genetically predisposed to violence imposed lighter sentences in a hypothetical case than they otherwise would have, researchers reported on Thursday, in the most rigorous study to date of how behavioral biology can sway judicial decisions.... Defense lawyers now commonly introduce brain scans of convicted clients as mitigating evidence in appeals of death sentences, experts said.
How in the world is "my brain made me do it" an excuse?! Obviously any difference in our cognitive dispositions (including, say, an immoral indifference towards others' suffering) will be reflected in our brains somehow. And learning that this difference has a partly genetic cause certainly shouldn't make any moral difference. ("No, your honour, he didn't have a traumatic childhood; he was born that way! Isn't that so much better?")
Really the only consistent positions to hold when it comes to the question of moral responsibility are that either (i) no-one is responsible, due to the impossibility of pure self-creation, or else (ii) bad people should be punished, regardless of how they got to be that way. In neither case is genetics relevant. (Brain scans may be, on the second view, if they can show the harmful behaviour to due to mere temporary insanity or the like, rather than a lack of good will on the part of the agent.)
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This just seems to be a basic confusion. The idea must be that the justification of punishment is tightly linked with moral responsibility. Genetics makes someone less morally responsible for their crimes therefore the justification of punishment is weakened (or non-existent) in cases of genetic abnormality. The minor premise is plausible, but the major premise is false as you note. The justification and norms of punishment are grounded in different considerations than the justification and norms of moral responsibility; one can stand or fall independently of the other. This is a similar confusion to individuals who think that the immorality of a particular action justifies making that act illegal.
ReplyDeleteThere are two questions. There's the cause/responsibility question, which I think you're right about, and most systems of law agree, but there are also the cases where most systems of law do allow for an excuse, and those are the ones where the person is not capable of understanding the rules of right and wrong. Those are the cases where we typically allow them to have an insanity defense or whatever they call them nowadays.
ReplyDeleteOften it's misdescribed as whether they understand right and wrong, but that would preclude sociopaths from being punished, since they don't really understand right and wrong. What they do understand is which things are generally considered right and wrong. And that's enough to punish them. But the general consensus seems to be that it's wrong to punish those whose mental faculties don't even allow them to discern which things are generally regarded as right and wrong. Even if we lock some such people up, it's not to punish them.
This is something that I've noticed people mix up all the time, Richard. Good post!
ReplyDeleteIt could be that genetics is relevant to the "bad people should be punished" solution, depending on what the rationale for punishment is. Insofar as punishment is intended to rehabilitate criminals, it would seem to miss the mark for criminals that, for whatever reason, are unlikely to ever improve. Perhaps some genetic causes of antisocial behaviour fall into this basket; I don't know.
Of course, there are other reasons to punish, such as deterring third parties, so maybe irredeemable psychopaths should be punished for that reason, the futility of rehabilitation notwithstanding.
I'm a little baffled by your (ii), although, given your concession with brain scans, perhaps I'm not understanding it properly. It's obvious that we could make 'bad people should be punished' a default position, but to say that they should be punished regardless of how they got to be that way (1) seems to assume that 'moral responsibility' is univocal, when it clearly is not (Nicole Vincent has some good papers on this, although I think the terrain of responsibility is actually even more varied than she suggests); and (2) rules out pardoning powers, which have always been theoretically justified as being necessary for cases of (to use Alexander Hamilton's phrase) "unfortunate guilt" or (to use James Wilson's) cases where people are "unfortunate in a higher degree than that in which they are criminal. Or, to put (2) in a different way, there are at least some common ways of taking 'moral responsibility' where we judge responsibility in part on the commission of the act relates to the luck or fortune, good or bad, of the agent leading up to the act; to say that luck or fortune -- and genetics is certainly as much part of that as traumatic childhoods and the like -- should have no role to play in any assessment of moral responsibility seems a little strong.
ReplyDeleteHi Brandon, one might be driven to crime without being a bad person, and hence be an eligible candidate for pardoning. But I don't think that all kinds of luck are exculpatory. Luck which indicates that one performed the act not for bad reasons is exculpatory, to my mind. But if one is indeed a bad person, and commits a crime due to their stable lack of concern for others' interests, then mere "character luck" -- luck involved in becoming the bad person that they now are -- strikes me as completely irrelevant. (One reason for thinking this is that it is completely ubiquitous. I don't see any grounds for taking genetics or "traumatic childhoods" to be exculpatory without taking all natural causes of bad behaviour to be exculpatory. And all behaviour has natural causes, which can be traced back to matters the agent had no control over, and hence are a matter of "luck" so far as they are concerned.)
DeleteThanks; that clarifies a lot.
DeleteI think it's somewhat misleading to talk about ubiquity here. Yes, genetics is ubiquitous, but not all genetic profiles are. And it's the differentiation of genetic profiles, rather than the mere fact that they are genetic -- the severe variation in the hands that are dealt, not the fact that they are dealt -- that, I suspect, are what people are usually concerned with. Natural causes of bad behavior are not all of a piece, but very different in character, and the relation of them to the particular actions in question is not the same for each kind of natural cause. Likewise, I think whether one eliminates particular genetic profiles as indicators of performing "the act not for bad reasons" will depend simply on how one thinks those genetic profiles actually contribute to the action; things that are genetic by their nature are usually independent of our particular reasons for doing things, so if they have a large share in causing particular kinds of actions, then even though they aren't going to be the only relevant causes, they would still be directly relevant. So, really, if what matters is whether you perform an action for bad reasons or not, then it would seem to be a purely empirical issue whether genetics ever exculpated or not, based on how much genetic causes are likely to influence the action independently of one's deliberate reasons.
One of the things that's relevant here is that we've actually been doing this sort of thing for quite some time: the fact that alcoholism has a hereditary component, for instance, has already shifted a lot of behaviors, even if not all, out of the reasonable-to-punish category and into the simply-needs-help category, and it's essentially the reason why arguments that homosexuality is genetic were originally put forward in policy discussions -- people generally think it's less reasonable to punish something that people are born with. I think both of these can easily be defended on other grounds, but I'm also reluctant to say that these particular arguments have no relevance. I doubt that they are ever decisive on their own, and I actually don't think genetic contribution to action is usually very significant at all, beyond the sorts of things Jeremy mentioned; but if someone thought they had reason to think that the genetic contribution was pretty significant, the arguments don't seem unreasonable, even in the case of genuinely bad actions of genuinely bad people -- surely in such cases it matters how much the bad action is actually due to the badness of the person rather than things that would have been the case even if the person's reasons had not been bad at all. And what happens before you are born, in the processes that give you the genetics you have, is certainly something that would have been the case regardless of what your own deliberate contribution to your actions may be. So, again, it would seem to be a purely empirical issue whether genetics really matters to exculpation or not.
Ah, yes, I was (lazily) assuming that we were talking about genetic influences on "character" (broadly construed to include values, deliberative dispositions, etc.). But you're quite right that there could be genetic influences that bypass rather than shape one's true character, and hence should qualify as exculpatory by my own account (again, because it shows that the criminal wasn't really a "bad person", despite the harmful behaviour). Thanks.
DeleteIn terms of sentencing there isn't an obvious justification for taking predisposition in to account for crimes where the rules of law are very clear, that is regardless of genetics, if a society has a well publicised and reinforced prohibition of any act, you should be equally liable for punishment regardsless of how hard or easy it is for you to transgress.
ReplyDeleteHowever this does look like the start of a very heavy handed approach to seeking out the causes of crime and perhaps mitigating them. It would certainly be easier for a given state than eliminating social inequality and poverty if they can just look at a scientific readout, divide the sentence by a number on the paper and say that justice is equal for all.
There's obviously an interesting debate too in the possible impact this line of jurisprudence could have on those from gentiic lines without any indication of disposition.
Machines intelligences born with the wrong architeture should no be punished for the sake of moral relevance-- from the time they become relevant? Or they deserve to be in prison for eternity? Or ther programmer?
ReplyDelete