From the article, referring to recidivism rates in sex crimes: "But among the strongest predictors of recidivism are prior sexual offenses and sexual interest in children. When you compare the predictive power of the actuarial approach with that of the parole boards and psychiatrists, there is no contest: numbers beat intuition."
One of the best changes in the administration of criminal justice in the United States during my lifetime has been use of standardized sentencing guidelines, pioneered in the state of Minnesota,
to reduce the variance among different judges in how convicted criminals are sentenced. By taking into account the severity of the most recent offense for which a defendant is convicted, along with the defendant's history of previous convictions, Minnesota can imprison many fewer criminals than most states--diverting less dangerous criminals to community-based rehabilitation programs--and actually spend more per prisoner (for more humane imprisonment) while spending less per taxpayer on its prison system than most other states. The most dangerous criminals are kept away from potential victims, so that my neighborhood and most neighborhoods in Minnesota are perfectly safe for children to go out in alone. Youthful offenders who make one minor mistake are set straight and continue to be productive members of society. By contrast, the "three strikes and you're out" rule of California, promoted as a make-work program by the prison guard trade union, needlessly imprisons tens of thousands of California convicts in degrading conditions that result in more recidivism when convicts are eventually released, and endangers the solvency of the whole state government.
Many states in the US have justice systems that are at least ostensibly rehabilitation-based, and to the best of my knowledge many countries in Europe have punishment-based systems. But though we humans always want to make easy black and white characterizations anything involving as many people as a criminal justice system is going to end up as a compromise between various goals.
It was a generalization, there are big differences between the various states in the US, and there are big differences between various countries in Europe, but generally, criminal punishments are less severe over here, and more severe in the US.
Some states in the US have the capital punishment, and some even allow the victims to witness the execution. "To ensure justice was done" is the official explanation, but in reality, it's to satisfy the victim's desire for revenge.
Over here, the victims of a crime are part of the process only as witnesses, and then they're out. There are no juries to sway with emotion, all sentence lengths are standardized by law, and "life in prison" means 20 years, max.
There is no public opinion that we should be "tougher on crime", no political parties are campaigning with the promise to increase sentence lengths or be harder on criminals, some want more resources and money to the police, but that's it.
There's a general awareness that prisons actually harden criminals, that the more time they spend with each other, the more likley they are to return to a life of crime when they get out. We try not to mix people serving a sentence for the first time, with people who are return criminals.
The primary purposes of prisons is of course to lock people up, to remove them from society, to ensure they can't move freely or do work or business, but there is a secondary explicit purpose, and that is to rehabilitate as effectively as possible, to give the prisoners as much help and support as possible, to make sure they don't commit crimes again.
It is very common over here that people who commit murder are sentenced to forced psychiatric rehabilitation instead of prison, and you do psychiatric evaluations of everyone accused of violent crimes, so there's an underlying general sentiment that criminals are sick, not evil.
Of course a lot of people mistrust former convicts, of course a lot of people think criminals deserve to be put away, but there's a lot less of those sentiments over here, compared to the US. Our prison population per capita here in Sweden is also 1/10th of the US average.
So, given all this, the news that a lot of criminal behaviour can be explained by brain malfunction isn't devastating at all. Quite the opposite, it means that you suddenly have more ways to rehabilitate criminals, if you can remove a tumor or fix a chemical inbalance, that's good! It means even less people in jail, and less violent crime.
But if the primary purpose of your justice system is to ensure the victims get their revenge, then it's not helpful, it's not good, because it will "rob" victims of their revenge.
The US had really, really bad crime in the 1980's and 1990's. In a lot of large American cities, infamously including New York, things like street muggings were literally a fact of life that nearly everyone had faced one time or another. I'm not aware that things ever got that bad in Europe; it's not fair to criticize our solution to a problem Europe hasn't even had.
Why were things so bad? We're not a culturally homogenous society, so we have lots of oppressed classes of people who are more likely to turn to crime. We have a history of high immigration and a history of puritanical, prohibitionist laws, which means organized crime from all over the world can easily gain a foothold here.
And, unlike Europe, large parts of America were basically frontier less than 150 years ago. The "wild west" wasn't as violent as you see in movies, but it wasn't a very nice place, either, and harsh measures were sometimes necessary. A lot of American sentiment on capital punishment dates from these times, and these circumstances which Europeans haven't been familiar with for centuries.
Pragmatically, the American justice system (capital punishment and long sentences included) does a very good job at containing criminals. We can be fairly certain that as long as someone is in prison, or dead, they are not going to go on and commit more crimes.
Frankly, the bulk of the problem in America has been urban gang violence. You can't fix that by rehabilitating individuals, because gang violence isn't an individual crime. Sure, brain malfunctions might explain individual criminals. They don't explain entire criminal subcultures. They can't all have brain damage, they just live in a culture where gangs are normal. Any human will do violent and terrible things to fit in with the culture that surrounds them.
As for the jury system, Americans consider jury trials to be just as fundamental to democracy as elections. Of course juries can be swayed by emotion--but if you only allow trained, expert judges to pass verdicts on a trial, by that same reasoning, shouldn't you only allow trained experts to choose your country's leaders? After all, voters can be swayed by emotion, too.
On another note, I'm curious as to how the justice systems you're talking about would handle criminals like Timothy McVeigh or Charles Manson. Don't you think that someone who kills children with truck bombs, or arranges a series of murders in order to incite a race war prophesied in Beatles lyrics, is too dangerous to be let go? A lot of experts believe that true psychopaths can't actually be rehabilitated--at best, they only learn how to fool therapists into believing they're healthy again. How is that handled?
What struck me while reading this article, is thought that modern society will be seen as barbarian 100 years from now - it seems very likely to me that people will see imprisoning (of person with brain problems) as something cruel, similarly that we are disgusted by concept of cutting off thieves' hands. Also this implies that there are many behaviours in our society that will turn out immoral some years later, which is rather uncomfortable thought.
Barring total collapse of civilization (in which case this will be a golden era), we will be seen as barbaric. But it isn't very easy to predict in what ways, without merely falling prey to ideas that will further prove to be modern fashionable ideas that don't actually work.
And there's no guarantee we wouldn't likewise consider the future barbaric. Is it really that "civilized" to be able to look at someone's brain, figure out precisely what it is that makes them $YOUR_LEAST_FAVORITE_POLITICAL_ORIENTATION, and precisely remove it with surgery and personalized drugs, forcibly applied? Or possibly even $YOUR_POLITICAL_ORIENTATION? I can provide arguments in favor of any political position of your naming being proof that the holder is a bad person that threatens all that is good in civilization and all necessary steps should be taken to eliminate the ideation entirely, lest it successfully spread. (Including mine.) Just as one for instance.
I've thought about this topic a lot lately. The issue with this is that in one way or another, all violent criminals have some sort of problem with their brain. They may not have a tumor or dementia, but something is wrong outside of their control. Should we punish them for that? And what is the alternative?
Well, I live in Norway, where the maximum sentence is 21 years. There are no life-sentences and certainly no death penalty. Even the top-security prisons are not too bad ( http://www.time.com/time/magazine/article/0,9171,1986002,00.... ). The focus is on rehabilitation instead of punishment, and it seems to work quite good. The inmates can get an education and participate in social activites.
Our crime rate is quite low and while that probably is a result of our welfare system, there are no indications that humane prisons negatively impact crime rates at all.
And the thing is that even our so-called "luxury prisons" ends up being cheaper than the American hellholes because we keep our inmates in for much shorter periods of time and focus on making them productive members of society instead of cage-animals.
The often used counter example to countries like Norway is you have a more homogeneous population of people, which leads to less internal social strife. I am not saying your system does not provides benefits over the way we treat criminals in the US. It is just that you have to find a way to control for the different social conditions in both countries before you can make numerical comparisons.
The issue with this is that in one way or another, all violent criminals have some sort of problem with their brain. They may not have a tumor or dementia, but something is wrong outside of their control.
You are saying that no healthy human being would ever commit a violent crime -- that nothing involving incentives or circumstances could prompt someone to make a decision to be violent? It seems to believe this you have to assume that in most eras most humans had some problem with their brain.
You are your brain so I kind of have problems seeing the distinction in the first place.
When a law says “Don’t publish a copy of the copyrighted music you own.” and you do publish a copy is there something wrong with your brain?
There certainly is if you believe that a healthy brain should not publish copyrighted music given the existing incentives in society.
Just think for a moment what would happen if we really were able and willing to change brains however we wanted to. Laws then become blueprints for changing brains which is kind of scary. Laws don’t have to orient themselves on what might be considered healthy brain behavior (but who gets to define that?), they can say whatever they want. It’s a pretty significant intrusion, but then again, so is locking someone up for a few decades.
I’m actually quite a fan of not ever punishing. I think the goal of criminal law should be to reduce crime while still allowing as much freedom as possible. Imprisonment (or, even worse, the death penalty) seems like a very blunt instrument for that purpose. Changing the brain, however, comes with its own issues. Does society get to decide who we are? I’m not sure about that.
I do think the human brain is flawed in some ways. The human brain isn't perfect, even though we like to think so.
The human brain has flaws that can't be controlled by its owner. We like to think that we're always in control of ourselves, but most of our actions are actually not pre-meditated. We are not ruled by logic as much as we think we are, instinct and emotions are way more powerful forces of actions in daily life. Many of us don't like to acknowledge it, but we're still animals.
The vast majority of murders are, despite what the mass media wants you to think, not premeditated. Most of them are committed either by accident or by rage. Rage is determined by genetics and upbringing.
Premeditated murders are considered "worse" than rage-induced murders, but then we're back at the issue - when you can commit premeditated murders something is wrong outside of your control.
Our legal system is created under the assumption that we're Vulcans, but we're not. Logic is (unfortunately?) not as important to how we act like we think.
What struck me was close to the opposite. The proposals in the article make me fear a future dystopia, where no one believes in free will, where the average person is degraded by a dehumanizing science. Like some science fiction horror story.
It aligns fairly well with Samuel Butler's Erewhon, actually -- and it should raise questions such as those visited in C. S. Lewis's essay The Humanitarian Theory of Punishment.
The population will contract at some point, one way or another. Either we will reach an unsustainable level of overpopulation or the world will reach a level of economic development sufficient to reduce the birth rate, just like we see in the wealthier countries.
This article is glib. It begins with a tragic anecdote that would soften anyone up - it certainly did me, no doubt triggering a brain reaction that caused me to read on. The author raises matters of great moral and social gravity. But what are his actual points?
1. That the biology of brain function affects behavior. Well, duh. 2. That this has legal implications. Double duh. 3. That our present legal system is one-size-fits-all. No it isn't. It may in aggregate be crude and stupid, but not that crude and stupid, as everybody knows (http://en.wikipedia.org/wiki/Extenuating_circumstances) and as the article itself shows (cf the Parks story). 4. That society's concepts of guilt change over time. 5. That scientific findings are relevant here. Who is arguing against any of this?
How about particular scientific findings with particular legal consequences? Well, "This research is just beginning"... "but if it works well, it will be a game changer." Today, "neuroimaging is a crude technology", but "within the coming decades" we "will be better able to say why people are predisposed to act the way they do". And that's it. The grandeur-to-substance ratio approaches that of strong AI.
Yes, the brain is important and people are not ideal atoms of free will. It does not follow that brain imaging has turned centuries of jurisprudence on their head.
"The future is already here, it's just not evenly distributed" is the Gibson quote that often gets applied to technology, but it applies as well to knowledge in general.
Who is arguing against any of this?
Maybe not anyone at a certain level of academic discourse, but US society and law continue to argue against it: the average person would attempt to make an explicit argument, and laws on the whole reflect an implicit discipline-and-punish philosophy more than the rehab hypothesis.
There's a long way to go before this is democratically-actionable knowledge, and I think he does a good job of presenting some easily-digestible food for thought.
Clinical depression has different causes. Even when it is neurochemical it could be an imbalance of dopamine or serotonin or norepinephrine or something else entirely. There's no one pill that works for everyone, or even most everyone.
"Imagine that you’d like to quit smoking cigarettes…"
This sentence alone is enough to tell me that this "game changing" technique of "prefrontal workouts" is misguided.
As a former smoker, I can tell you that there is definitely a mental rivalry going on in the head of someone who would like to quit cigarettes. However, I want to emphasize the "someone who would like to quit cigarettes" part because it makes an important distinction.
Smokers who have no desire to quit don't have the tug-of-war that the author speaks of. When I first started smoking I never once gave thought to quitting because, in my mind, I didn't have a problem. Only when I realized I was hooked and WANTED to quit did I start to have the mental rivalry he speaks of.
What does this have to do with criminals? The same rules apply. Let's rework that sentence a bit:
"Imagine that you’d like to quit crime…"
Huh???
How many criminals enter the penal system with such lofty goals? My guess would be not many.
I can see this being useful for someone who has already been reformed to some degree, because that person actually does possess a desire to change.
That being said, it still isn't THAT useful because, despite the fact that you may know which camp your thoughts fall into, you still need to deal with the day-to-day task of actualizing that knowledge.
As anyone who has ever tried to make a significant change can likely attest, knowledge is only half the battle- and the easiest half at that.
The not guilty verdict of Kenneth, the sleepwalk killer, bothers me. It doesn’t seem likely to me that they jury was in any doubt whether he committed the crime. And, in that case, our legal system says you should find the defendant guilty. I guess the jury gave the not guilty verdict because they felt it would be wrong for the defendant to be punished for a crime he committed while sleepwalking. This suggests to me that there’s insufficient separation in our legal system between whether someone committed a crime and what should be done about it. The assumption, you committed a crime therefore you should be punished, is deeply flawed and deserves serious reconsideration.
For the others that didn't know what "actus reas" and "mens rea" mean:
actus rea: the actual guilty act
mens rea: the guilty mind. (knowing they did something wrong, I suppose?)
I used Wikipedia for the citation. A useful quote from the Actus reus article to help expound on what I think latch was saying:
"The terms actus reus and mens rea developed in English Law, are derived from the principle stated by Edward Coke, namely, actus non facit reum nisi mens sit rea,[1] which means: "an act does not make a person guilty unless (their) mind is also guilty"; hence, the general test of guilt is one that requires proof of fault, culpability or blameworthiness both in behaviour and mind." (Actus Reus. Wikipedia. Entymology Section)
It doesn’t seem likely to me that they jury was in any doubt whether he committed the crime.
Well, it hinges on exactly what "he" means, doesn't it? Clearly his body and brain took the criminal actions, but apparently the jury believed that the "person" wasn't responsible for what the body and brain did.
If we based the consequences to the criminal of crime on restitution, taking the considerations of deterrence (including rehabilitation) and punishment out of the legal system proper, I think these problems would be clearer. If my brakes fail and I hit someone, I would still be on the hook for the consequences, without regard to whether I was blameworthy, and instances where a person's brain "fails" seem similar to me. Of course, killing is a problem area for restitution-based legal systems...
OK just realized what people are probably going to say in response to that: it’s the judge’s job to make that call. OK, fair enough. But that seems like a lot of power for a single individual.
Reminds me of an argument Plato (or was it Socrates?) made 2300 years ago. Essentially, he thought that all "unjust" people believe their actions to be "just" - they themselves thought they did the right thing.
As such, these unjust people should not be punished for their lack of knowledge, but instead educated or rehabilited, as their unjust actions were simply a result of not knowing what the "just" really is.
A modern metaphor for this might replace "knowledge of the just" with "biology that can resist impulse," or something similar. The problem, which was just as valid in Greece as it is now, is the question of "What is just?," or "Is a non-impulsive brain chemistry desirable?".
Hmm, do you really think most criminals believe themselves to be acting justly? I think they know full well that what they do is "wrong" but since they can get away with it, they figure why not?
At least in the US, I believe a majority of prison inmates get there initially by means of gang violence, and all it's related crimes such as drug dealing and robbery. Most of these people will tell you that it's simply a way of life, particularly true for people on the edge of society with few other means for advancement. So yes, I think most criminals do believe their actions are just.
Actually, now that you mention it, I believe Plato was (consciously or unconsciously, due to his aristocratic background) referring to the unjust in positions of power, maybe not so much criminals. As in, unjust men with long-term planning.
In that case, it is a convincing argument. Consider that most dictators and despots seem to think they are in the right (Ww2, etc.) Compare this to "normal" criminals, who seem to have poor impulse control (lack of long-term planning. )
Of course, that has nothing to do with the article. I've brought up an argument and then dismissed it just as quickly :)
I'm not sure I'd dismiss your argument so quickly. If one considers the "just" to be the best decision, given the circumstances, then most criminals are trying to be just. They may badly need money for their family. Or perhaps to feed a drug habit (In which case, as you said, perhaps they are ignorant of what really is just.) If they didn't think it was the best decision, for some good, why would they do it?
This just rehashes an old (and fallacious) argument under the guise of neuroscience. Bobert Blatchford tried to push the same view 100 years ago (see his article "Defense of the Bottom Dog"). He didn't convince many, though. There are some puzzles about the concept of "deserved punishment" (what do we say in cases of brain tumors?? omg!), but it isn't clear that we can reconceive of criminal justice on the model of putting someone in quarantine (where we don't blame them, but force them into a room for public safety; we also give them goodies to compensate for how we treat them..)
To the extent that our modern justice system is based on rehabilitation I think we're already pretty close to the model you seem to be saying is untenable. I only skimmed Blachford's article just now, but he seems to be saying that no criminal is responsible for his actions, which is very different from the tack taken by by this article, which distinguishes criminals who are responsible for their actions and those who aren't.
One of the best changes in the administration of criminal justice in the United States during my lifetime has been use of standardized sentencing guidelines, pioneered in the state of Minnesota,
http://www.msgc.state.mn.us/msgc5/guidelines.htm
to reduce the variance among different judges in how convicted criminals are sentenced. By taking into account the severity of the most recent offense for which a defendant is convicted, along with the defendant's history of previous convictions, Minnesota can imprison many fewer criminals than most states--diverting less dangerous criminals to community-based rehabilitation programs--and actually spend more per prisoner (for more humane imprisonment) while spending less per taxpayer on its prison system than most other states. The most dangerous criminals are kept away from potential victims, so that my neighborhood and most neighborhoods in Minnesota are perfectly safe for children to go out in alone. Youthful offenders who make one minor mistake are set straight and continue to be productive members of society. By contrast, the "three strikes and you're out" rule of California, promoted as a make-work program by the prison guard trade union, needlessly imprisons tens of thousands of California convicts in degrading conditions that result in more recidivism when convicts are eventually released, and endangers the solvency of the whole state government.