Gadfly: On Blame and the Criminal Justice System

0 Posted by - 04/09/2013 - Blogs

It’s difficult to think of many more damaging, unproductive and pervasive human reflexes than blame. It permeates through all areas of society: from intimate and familial relationships to workplaces; from the political sphere to the mainstream media. Directed outwards, it leads to contempt and ostracisation; directed inwards, to depression and self-loathing.

To some, this might seem an unavoidable part of human life. It does not have to be. There is a significant difference between identifying culpability – that is, acknowledging the role one’s actions played in bringing about a negative outcome – and the act of blaming. The former is merely an assertion of causality; the latter, an exercise in moral superiority. To blame is to assert that one could have and should have acted differently and, therefore, to condemn for failing to do so.

This kind of conclusion is, of course, somewhat dependent on belief in free will. I have covered that topic in greater depth elsewhere, but suffice it to say that it is a belief that I – and a great number of modern neuroscientists – reject. In any case, not even the staunchest free will advocate would seriously assert that we make decisions in a vacuum; clearly, genetics, culture and the situations we perceive ourselves to be in contribute significantly to what we decide to do.

The decision-making process, as I see it, is essentially a matter of competing desires. Consider, for instance, a person considering cheating on their spouse: what decision they make will, essentially, comes down to whether or not the combination of physical desire and excitement triumphs over inhibiting factors such as fear of negative consequences or empathy for their partner. Stress, memory and ability to think clearly will all contribute to the decision made. This kind of interplay is present in all situations, whether it be committing a crime or choosing which breakfast cereal to eat in the morning.

This is what makes the concept of free will so nonsensical. If these decisions are merely the results of factors out of our control — one, after all, does not choose what to desire or to what extent; such dispositions are inevitably some combination of extant personality traits and biology — then it is merely left to us to pick the option that feels ‘best’ at the time. That being so, how can we judge anyone else for making ‘wrong’ choices when we know that we would have done the same with their combination of genes, socialisation and stimuli?

Some will argue that it is important for an individual to take ‘responsibility’ for their actions. That is, I believe, a fallacy. The act of what is commonly supposed to constitute failing to accept personal responsibility – 'making excuses' – is usually either shifting the blame onto somebody else (the same fundamental error) or irrationally assuming helplessness (for instance, presuming that one's upbringing precludes one from not acting criminally). What is needed in such circumstances is not 'responsibility', and certainly not self-blame; what is needed is rational thought.

Even if this were not so, blame would still be highly problematic. Beyond matters of free will or morality, it simply doesn't achieve anything positive. Far better, surely, to deal with the negative consequences of certain actions, use them as learning experiences and work towards positive future goals than to indulge in recriminations over past events. This is a case eloquently argued by Sam Harris in his ‘crocodile’ analogy below:

It is not always possible to deal with these things rationally, of course, but if we at least understand what the ideal is, we are less likely to fall into patterns of blaming ourselves and others in our everyday lives.

In the realm of interpersonal relations, this is not such a radical conclusion. In the realm of therapy and self-help literature, it is arguably the mainstream view that blame is harmful and counterproductive. A more pressing problem is how to apply such a conclusion to the legal system.

It would be a mistake to assume that rejection of blame entails rejection of punishment. Most would agree that society cannot function without a legal code of some kind; furthermore, a legal code is meaningless without enforcement. Clearly, we need to have some mechanism whereby harmful behaviour is minimised; however imperfect, criminal punishment provides that.

This is a subject that psychologists Joshua Greene and Jonathan Cohen explore in their thought-provoking paper 'For the law, neuroscience changes everything and nothing'. Here, they propose two models of law enforcement: ‘retributivism’, founded primarily on the concept of desert (that is, criminals receive the punishment that they ‘deserve’), and ‘consequentialism’, founded upon purely utilitarian concerns (that is, sanctions are calculated according to the good of society, with no regard for blame or vengeance). Given our growing understanding of neuroscience and the illusory nature of free will, they argue, we must move towards a fully consequentialist system.

In the Australian context, it is debatable as to what vestiges of retributivism remain – in the United States, where the above article originates, it is still discernible in practices such as capital punishment and mandatory sentencing – whatever the case, I wholeheartedly agree that there is no place for it in a modern justice system. If a penalty cannot be defended in terms of a) its likely success in preventing a criminal from harming others and b) its ability to provide a suitable deterrent for others, combined where possible with c) its potential for aiding in the process of rehabilitation, then it is gratuitous.

What this might mean for the future of the justice system is another matter. Greene and Cohen propose a move away from punishment altogether and towards a sort of ‘treatment’ model. Although some have pointed out the potentially dystopian aspects of such an approach, there is at least some merit to it. Certainly, for serious repeat offenders such as Adrian Bayley, it is hard to argue against early therapeutic and/or medical intervention; to do otherwise if given the option would be gross negligence.

As our understanding of neuroscience progresses, these are questions that will inevitably need to be asked. In the meantime, we would do well to understand that even the most terrifying criminal is as much a victim of their biology and environment as we are. As we dispense with folk concepts such as good and evil, we would do well to treat blame and judgementalism as similar archaisms – attitudes that do nothing to make society a better place. By what higher standard could they possibly be measured?

David Heslin

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