The man who took the knife and slit the throat of the woman whose money and body he wanted could not help himself. But the judge who sentenced that man to jail for life sure knew what he was doing.
The judge had freedom, he could make a choice. He should have considered that the murderer had none. The murder’s brain made the murderer do what the murderer did (the personal pronoun is out of place here). The judge’s brain was under no constraints. The judge could have let the murder go.
And, no, it’s not that mysterious entity Society which caused the man to wield his knife. That theory is passé! It is so 1970. This is a new century and we’re well into it. Times is modern! We should embrace new and colorful, computer-generated theories of exculpability.
Enter neuroscience and neuroscientists like David Eagleman, who begins with a kernel of truth embedded in hyperbole:
The first lesson we learn from studying our own circuitry is shocking: most of what we do and think and feel is not under our conscious control. The vast jungles of neurons operate their own programs. The conscious you â€“ the I that flickers to life when you wake up in the morning â€“ is the smallest bit of what’s transpiring in your brain. Although we are dependent on the functioning of the brain for our inner lives, it runs its own show. Your consciousness is like a tiny stowaway on a transatlantic steamship, taking credit for the journey without acknowledging the massive engineering underfoot.
From that he moves to two false but fixable statements:
The problem is that the law rests on two assumptions that are charitable, but demonstrably false. The first is that people are “practical reasoners”, which is the law’s way of saying that they are capable of acting in alignment with their best interests, and capable of rational foresight about their actions. The second is that all brains are created equal.
The law is not based on the principle that all are “practical reasoners.” It is based on the principle that people are responsible for their self-directed actions. The law is also not based upon the principle “that all brains are created equal.” The mentally deficient (in the technical sense) are given due consideration.
From these first three (with two false) premises, he announces, “The legal system needs an infusion of neuroscience. It needs to turn away from an ancient notion of how people should behave to understand better how they do behave.” This will not lead to blanket exculpation of those who commit crimes, but to a “refinement of our sentencing” of the guilty.
He concludes, “Currently, our patterns of punishment are founded on the concepts of personal volition and the attendant culpability. But a shift in our understanding of individual differences suggests a move toward prison sentences tailored to the risk of recidivism rather than the desire for revenge.”
This conclusion does not follow from its premises, even assuming they are all true. If we accept that criminals1 (defined as those people who commit a well-defined act) could not help themselves, then locking these people away makes no sense. It is like punishing a snail for leaving a trail of slime.
It frightens me to think that some believe we can predict which criminal will become a recidivist and which not. But assuming we can, then you are introducing the entirely new legal principle that a man should be locked up because some statistical model predicts he will commit a future crime. And why just lock up those who have previously committed crimes? We could apply the same models to everybody and put away any who we predict would commit undesirable acts.
If you assume a criminal could help himself, at least partially, but believe he will not become a recidivist (perhaps he slaughtered his hated father), Eagleman (apparently) argues letting this man go free else his punishment would only be for revenge.
And here we have it, the principle no truly Enlightened person would accept. Instead of revenge, “It is time to let go of our intuitions about how people should behave and pay attention to how they do behave â€“ to run our legal system as rigorously as a science experiment.”
Eagleman, who evidently has no acquaintance with John Locke, has not considered that it was the evolution from personal and family vendettas and blood feuds, to disinterested judges and punishment by the state which gave us civil society. Prison is not revenge, it is the rule of law. It is justice.
1Why just criminals? We all have brains and so are all slaves to our neurons to some extent. We could reorder all of society on firm, neurological grounds. What happiness awaits!