Creating Freedom. Raoul Martinez

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 would involve acknowledging that no one is truly blameworthy, rejecting retribution as a legitimate justification for punishment and focusing on improving the future rather than exacting revenge for the past.

      Dispensing with blame and responsibility does not necessarily mean dispensing with all punishment. The evidence we have from psychological studies suggests that ‘the motivation to punish in order to benefit society’ remains in place even when ‘the need for blame and desire for retribution are forgone’, so society could keep the ‘social benefits of punishment intact while avoiding the unnecessary human suffering and economic costs of punishment often associated with retributivism’.¹² Once we know someone is guilty of committing a crime, the important question is what the effect of punishment would be on both the guilty lawbreaker and the rest of society. In a rational criminal justice system, the justification for punishment would derive solely from the positive effects it has on society, not from notions of blame or desert.

       The benefits of punishment

      Once retribution is ruled out, the most influential justification for punishment is to be found in the logic of deterrence. The idea is that criminal punishment not only deters lawbreakers from reoffending but acts as a deterrent to the wider population, a common assumption being that more severe punishments are more effective deterrents. Although in some contexts the logic of deterrence is compelling, it has its own serious flaws and fails as a justification for many of the punishments currently endorsed by governments – democratic or otherwise – around the world.

      Deterrence strategies often fail to produce the outcomes we expect. Comparisons are difficult to make, but there appears to be a trend towards lower reoffending rates in less punitive countries. The incidence of recidivism in the US and UK hovers between 60 and 65 per cent. This is roughly 50 per cent higher than rates in less punitive nations such as Sweden, Norway and Japan.¹³ Bringing together the results of fifty different studies involving over 300,000 offenders, Canadian criminologist Paul Gendreau found that not one reported that imprisonment reduced recidivism. In fact, longer sentences were associated with a 3 per cent increase in reoffending rates, supporting the theory that prison can function as a ‘school for crime’.¹⁴

      In the US, almost seven out of ten males will find themselves back in jail within three years of release.¹⁵ A 2010 UK government paper showed that 68 per cent of adults who either left prison or started a community sentence in the first three months of 2000 had reoffended within five years.¹⁶ After decades of research, prison psychiatrist James Gilligan concluded that the ‘most effective way to turn a non-violent person into a violent one is to send him to prison’ and that ‘the criminal justice and penal systems have been operating under a huge mistake, namely, the belief that punishment will deter, prevent or inhibit violence, when in fact it is the most powerful stimulant of violence we have yet discovered’.¹⁷

      Objects,