Unmasking retribution

Michael Shermer's 6/1/06 E-Skeptic published a review by Kenneth Krause of Laurence R. Tancredi’s book, Hardwired Behavior: What Neuroscience Reveals About Morality (Cambridge University Press, 2005. ISBN 0521860016). Below are some comments on a passage from the review and a related New York Times article on insanity and the death penalty:

“This would suggest,” Tancredi argues, “that murderers are strongly affected by prefrontal deficits even without the ‘social push’ from environment” (153). The author stops short, however, of professing that criminals are never morally responsible for their actions. Rather, he writes, “those who have full control are likely to represent a very small percentage of those we now label as bad,” and “the relationship between ‘mad’ and ‘bad’ is growing ever closer” (143, 160).

Thus, Tancredi alleges, the M’Naughten standard and other modern legal insanity tests are deficient, at least insofar as they consider only a defendant’s ability to distinguish or appreciate the difference between society’s definitions of right and wrong but not a defendant’s ability to control his or her behavior, or, in other words, to exercise free will. The same reasoning should apply, the author reasons, when individuals judge other individuals’ “badness.”

This is interesting since it demarcates two classes of murderers: those who have full control capacities and thus are morally responsible (a small minority, according to Tancredi), and those who don’t (the majority). If so, then we’re punishing lots of people who aren’t morally responsible, instead of treating them or at least keeping them safely and humanely segregated from society.

This fits with a recent New York Times article, “Judging whether a killer is sane enough to die” which shows that people are far more interested in exacting punishment, even of the demonstrably insane, than in providing treatment or humane segregation. Why, one wonders? The Mr. Panetti mentioned below is a convicted killer facing execution who has a long history of mental illness:

Robert Blecker, a law professor at the New York Law School and a cautious supporter of the death penalty, said Mr. Panetti's execution could serve the goal of retribution. "He knows what he did," Professor Blecker said. "He knows what the state is about to do to him, and why. For the retributivist, the past counts. It counts for us, and for us to be retributively satisfied, it must also count for him."

We see here the stark disconnect between achieving backwards-looking retributive satisfaction (“the past counts”) and any forward-looking social good that might be served by killing Panetti. All that’s necessary to justify retribution, says Blecker, is the offender’s bare understanding that what he did was wrong, however impaired he might be in his ability to control behavior. Because the goal of punishment here is retribution, not reform, rehabilitation, public safety or deterrence, the person’s mental health (beyond possessing a rudimentary moral sense) is not a consideration. This shows just how much the demand for retribution has, over the last 30 years or so, come to trump the functional role of punishment in facilitating rehabilitation and public safety. Even if Mr. Panetti had full control capacities and thus on Tancredi’s compatibilist account had free will and was morally responsible, we could ask the question: why is it morally better to kill him as opposed to humanely segregating him? Why does he just deserve to die? The answer isn’t at all obvious, as explored at http://www.naturalism.org/criminal.htm.

What’s ironic is that our retaliatory, punitive impulses were originally functional (deterring aggressors, keeping free riders in check, etc.) but now, thanks to Kant and other deontologists, they’ve been given a justification that floats free of any consequentialist rationale: we’re obligated to inflict suffering or (in this case) death, whether or not any benefit results; it’s our duty if the offender has the capacity to know right from wrong. It’s the past that counts, not the future. But as neurophilosopher and psychologist Joshua Greene points out, what’s really going on is that the hard-wired emotional disposition to retaliate bequeathed us by evolution has been enshrined as an abstract deontological moral principle. This allows its expression even in cases where no enlightened social good is achieved, but only the emotional satisfaction of inflicting suffering or death, dressed up as retributive justice. Seeing this, we can pose the question of whether retribution should really have such a claim on us. When retributive justice is unmasked for what it is, do we any longer want to be part of it? Here’s an example of how a naturalistic understanding of ethics and our moral intuitions might have far-reaching policy implications for criminal justice.