Defending People

the tao of criminal-defense trial lawyering

Puppets Without Puppeteers

This opin­ion piece in the NYT by John Mon­terosso and Barry Schwartz doesn’t sup­port the con­clu­sions that the authors want us to reach:

It is cru­cial that as a soci­ety, we learn how to think more clearly about causes and per­sonal respon­si­bil­ity — not only for extra­or­di­nary actions like crime but also for ordi­nary ones, like main­tain­ing exer­cise reg­i­mens, eat­ing sen­si­bly and sav­ing for retire­ment [an exhor­ta­tion “to think more clearly” is unlikely to draw any objec­tion]. As sci­ence advances, there will be more and more “causal” alter­na­tives to inten­tional expla­na­tions [recent his­tory sug­gests that this is true], and we will be faced with more deci­sions about when to hold peo­ple respon­si­ble for their behav­ior [likely]. It’s impor­tant that we don’t suc­cumb to the allure of neu­ro­sci­en­tific expla­na­tions and let every­one off the hook.

There is noth­ing in the op-ed that leads to that last con­clu­sion. It’s non sequitur, sit­ting right where a log­i­cal con­clu­sion right­fully belongs. It’s also a rep­e­ti­tion of the same non sequitur from ear­lier in the piece:

If we view every new sci­en­tific find­ing about brain involve­ment in human behav­ior as a sign that the behav­ior was not under the individual’s con­trol, the very notion of respon­si­bil­ity will be threat­ened. So it is imper­a­tive that we think clearly about when brain sci­ence frees some­one from blame — and when it doesn’t.

I don’t see the notion of respon­si­bil­ity being threat­ened by the fact that our con­duct is caused by elec­tro­chem­i­cal reac­tions in our brains which are formed entirely by our genes and expe­ri­ences, and noth­ing more. The per­son (the com­plex of genes and expe­ri­ence, and noth­ing more) has peformed the act; the per­son is respon­si­ble for it. If it is nec­es­sary to pre­vent fur­ther harm through inca­pac­i­ta­tion, then it is the per­son who must be inca­pac­i­tated; if it is pos­si­ble to pre­ven fur­ther harm through reha­bil­i­ta­tion, then it is the per­son who should be reha­bil­i­tated; if deter­rence is called for, than the per­son may be deterred, or oth­ers may be deterred, by demon­strat­ing to them the pun­ish­ment of the per­son (adding an expe­ri­ence to the cat­a­log of expe­ri­ences that, along with their genes, forms them).

The per­son is respon­si­ble, and this respon­si­bil­ity jus­ti­fies pun­ish­ment under almost any peno­log­i­cal the­ory. Any the­ory but retribution.

Mon­terosso and Schwartz don’t dis­cuss what they mean by responsibility—maybe they see it as beyond the scope of the short op-ed, and maybe they assume that their read­ers will take their mean­ing. It appears that by respon­si­bil­ity they mean not only the sort of respon­si­bil­ity that would jus­tify the inca­pac­i­ta­tion of the per­son to pre­vent fur­ther bad acts, but also the blame­wor­thi­ness that would jus­tify retribution.

This is the moral blame­wor­thi­ness ques­tion that we some­times ask juries to answer: if you were the defen­dant, would you do the same thing? The truth­ful answer, always, has to be “yes,” but a lack of moral blame­wor­thi­ness often doesn’t let the accused off the hook. There are other con­sid­er­a­tions than blameworthiness.

Rec­og­niz­ing that we are our brains, and every step we take is dic­tated by our genes and expe­ri­ences, does not “let every­one off the hook,” but it dam­ages the notion that wrong­do­ers are evil. If every­thing I do is dic­tated by nature and nur­ture, then if you had the same nature and nur­ture as me (in other words, if you were I), you would do as I do. If you would do as I do, then I’m not morally blame­wor­thy for my bad acts (nor—not for noth­ing—morally praise­wor­thy for my good acts). You might say that I needed to be pun­ished or that soci­ety needed to pun­ish me, but you prob­a­bly wouldn’t say that I “deserved” punishment.

The authors decry the “naïve dual­ism” of peo­ple who see “bio­log­i­cal” causes as reliev­ing a per­son of respon­si­bil­ity, but “psy­cho­log­i­cal” causes as not.

Was the cause psy­cho­log­i­cal or bio­log­i­cal?” is the wrong ques­tion when assign­ing respon­si­bil­ity for an action. All psy­cho­log­i­cal states are also bio­log­i­cal ones.        

They go on to engage in some naïve dual­ism of their own:

If, hypo­thet­i­cally, only 1 per­cent of peo­ple with a brain mal­func­tion (or a his­tory of being abused) com­mit vio­lence, ordi­nary con­sid­er­a­tions about blame would still seem rel­e­vant. But if 99 per­cent of them do, you might start to won­der how respon­si­ble they really are.

(My empha­sis.) Mon­terosso and Schwartz seem to think that there must be some­thing out­side of bio­log­i­cal causes—and there­fore jus­ti­fy­ing blame—that led the one per­cent to com­mit violence.

It’s a ludi­crous sug­ges­tion. One expe­ri­ence can’t be sep­a­rated out from all of the oth­ers. If, hypo­thet­i­cally, only one per­cent of peo­ple with a given brain mal­func­tion com­mit vio­lence, the only thing that we can say is that we don’t have enough infor­ma­tion. We don’t know whether that mal­func­tion con­tributed to the vio­lence at all, much less what other fac­tors drove those people’s behavior.

Every year neu­ro­science makes it clearer that we’re liv­ing in a deter­min­is­tic world.The philoso­phers are still fight­ing over whether this deter­min­ism might some­how be com­pat­i­ble with free will. Whether we can be held “respon­si­ble” for our actions, whether we are “blame­wor­thy,” whether we have “free will,” and what we “deserve” are not ques­tions for psychologists—the deter­min­is­tic train left the sta­tion long ago—but rather for seman­ti­cists. The ques­tion of blame­wor­thi­ness is no longer whether any­one else in the same sit­u­a­tion would have done the same thing (they would); it’s now whether there’s a way to define “blame” so that it doesn’t mat­ter that any­one else in the same sit­u­a­tion would have done the same thing.

(H/T Nathan Bur­ney, via Twitter.)

Share

About The Author

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.

Comments

2 Responses to “Puppets Without Puppeteers”

  1. John David Galt says:

    What’s miss­ing here is the com­mon sense under­stand­ing that being a per­son equals being a moral agent.

    Let’s assume for the sake of argu­ment that a good sci­en­tific case can be made that abused peo­ple are more likely than other peo­ple to com­mit assaults. That infor­ma­tion shouldn’t be thrown away; there are valid ways in which it can be used to try to pre­vent assaults or to pro­tect against them when they happen.

    But the time to apply that rea­son­ing is before an indi­vid­ual com­mits the crime. It has no place at trial or sen­tenc­ing. The bot­tom line is that either you under­stand and are respon­si­ble for what you do, or you are inca­pable and there­fore not morally human.

    Either way, the bad guy (once we prove it’s he) must lose so that the rest of us can be safe.

    • Mark Bennett says:

      That’s because the com­mon sense under­stand­ing is often—and in this instance probably—not correct.

      We humans have long thought that we have free will only because a) it appears to each of us that he has free will; and b) oth­ers relate the same expe­ri­ence. (Also because the belief helps us solve some tricky prob­lems, such as why ret­ri­bu­tion feels so damn good.)

      But our brains play tricks on themselves.

      Corn flakes or Wheaties? It appears to you that you can freely choose. You can even play games with your­self, pre­tend­ing to choose and then chang­ing your mind—“I’m going to have Wheaties—no, corn flakes—no, Wheaties! Ha!”

      Come break­fast time you’re going to eat one or the other (or nei­ther, or both) and rec­og­nize it (or like it) or not, that action was pre­de­ter­mined. You eat what you “choose” to eat, you “choose” to eat what you pre­fer to eat, but you don’t get to choose what you prefer.

      We do what we “choose” to do, we “choose” to do what we pre­fer to do, but we don’t choose what we pre­fer. Our pref­er­ences were set for us at the moment of the big bang.

      The bad guy must lose so that the rest of us can be safe” is fine, but it has noth­ing to do with moral­ity. It’s a rule that applies as well to the bro­ken machine as it would to the (hypo­thet­i­cal) freewil­led bad guy.

Leave a non-anonymous Reply