If you’re an American, you’ll at least have heard of Chris Kyle, the famous “American Sniper” who is the subject of a big-grossing Hollywood movie of that name. Kyle, a Navy SEAL stationed in Iraq, was the most “successful” of military snipers, with 160 confirmed kills and nearly a hundred more suspected kills—one from a distance of over a mile. He also wrote a bestselling book with the same title as the movie.
And as you may also know, Kyle devoted his post-war life to helping veterans recover from post-traumatic stress disorder (PTSD). Ironically, it was one of the people he was trying to help, Ray Routh, who, in February of 2013, shot Kyle and his friend Chad Littlefield in the back when they took him to a shooting range as part of Routh’s treatment. Kyle and Littlefield were both killed, and Routh was tried for the murders.
Routh pleaded “not guilty by reason of insanity,” and there were good reasons to think that he was pretty deranged. He had been diagnosed with schizophrenia before he entered the military, as well as PTSD. He was a heavy drug user and had been in and out of mental hospitals. But the Texas jury didn’t buy the insanity plea and, on Tuesday, found Routh guilty of capital murder. Mandatory sentencing laws mean that he’ll spend the rest of his life in prison without the possibility of parole. The Washington Post analyzes why the insanity defense failed:
To surmount the odds, an attorney must demonstrate not mental illness but legal insanity. Texas makes clear the distinction between the two in its legal standard: “It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.”
You can be insane, but if you knew at the time of the crime what you were doing was wrong, you’re cooked.
And that’s what cooked Routh, for in his interrogation after the shootings, he was asked by a Texas ranger, “You know what you did today is wrong, right?” Routh answered: “Yes, sir.” That’s all the jury had to hear to convict him. Also, several psychiatrists testified that Routh was faking his illness. (Others took the opposite view.) As an expert witness, I know that you can always buy expertise to testify in your favor, whether you’re the defense or the prosecution, and that’s why I never took money for my services—to buttress the credibility of what I said about DNA evidence. These things tend to become a “battle of experts,” with the jury left baffled and unable to judge. Such bafflement should, in fact, raise some “reasonable doubt”, which is the criteria for exculpation—from capital murder in this case.
As a determinist who thinks (along with most of us) that Routh had no choice about what he did, was his sentence appropriate? Should “the ability to tell right from wrong, and know what you did was wrong” be the criterion for sanity and imprisonment rather than treatment (which is what would have happened had Routh been found not guilty by reason of insanity)? Also, as a determinist I think that since we have no choice about what we do, punishment should be based on three things: 1) sequestering the criminal from society so that no more crimes will be committed until he/she can be trusted to return to society, 2) setting an example for others to deter them from similar acts, and 3) isolation of the prisoner while he/she is being cured or treated for whatever caused the crime.
This is a hard problem, but I object to the criterion of an all-or-none insanity defense, particularly one based on “knowing right from wrong.” Suppose a criminal knows that what he did could be seen as wrong, but is a confirmed psychopath and doesn’t feel that what he did was wrong—or doesn’t care? Should that person spend the rest of his life in jail without treatment? That doesn’t seem right.
In fact, everyone is “insane” in some way when they commit a crime, for something about their genes and environment has led them to a situation where they do a bad thing, and they cannot help themselves, regardless if they know (or internalize) right from wrong. The “knowing right from wrong” criterion is irrelevant for conviction because it didn’t suffice to stop the person from committing a crime based on deterministic factors. Where it may be relevant is how to punish a criminal; but it’s not clear that the “knowing” criterion should be the one factor mandating jail versus psychiatric treatment, or how that treatment is given.
Ideally, in my view, there shouldn’t be a simple all-or-none decision that dooms a criminal to jail versus a more humane form of treatment or incarceration. If that criterion were found to be perfectly correlated with the certainty of doing more crimes regardless of how one is treated, then yes, maybe you can use it. But there are plenty of people who “know right from wrong,” but are so damaged, abused, or mentally ill, that they commit crimes anyway. I can’t see them being treated all the same.
And ideally as well, the jury’s decision should be only “whether the person committed the crime or not,” not “whether there were mitigating circumstances.” Those, and the sentence and treatment, should be left to experts, and that’s where science comes in. In principle, science could determine what kind of sentences are most valuable for deterrence (I believe that execution hasn’t been shown as a deterrent), what treatment is most efficacious in helping people return to society without endangering it, and how long that treatment should last before the return occurs. None of that is being done, of course—no society has that kind of money. Instead, we impose simplistic standards on juries, standards that, while they’re better than nothing, are surely far from optimal.
Nearly everyone has mitigating factors for their crimes, I think. Look at the overrepresentation of poor blacks in our prison system, which much surely reflect environments that are improverished, where education and conventional ambition are hard to sustain, as well as discrimination, which leads to both mistreatment and sequestration in substandard environments. One thing we must do is ensure that we try to mitigate those environments. But given that they’re here, and the undoubted fact that they breed crime, we must hold environment as a mitigating factor and see if there are ways we can cure its influence on the convicted.
This is not an easy problem. But one thing I know: we don’t invest nearly enough money in the scientific study of crime (which involves a mixture of psychology, sociology, and neurobiology), and yet it’s one of the biggest problems America has.
As for the fate of Routh, I wasn’t on the jury and don’t have their knowledge. But I know from personal experience how easily juries can be swayed by experts, as they were in the O. J. Simpson case. In that instance the jurors knew nothing about DNA, and merely the presence of some experts arguing about statistics and contamination threw sufficient sand in their faces that they simply thought, “oh, reasonable doubt.” In Routh’s case it went the other way. We need experts to judge such things, not untutored laypeople, no matter how well motivated they are.
That kinda says it all right there, doesn’t it?
b&
Yeah, pretty much.
I think I heard in Texas the defendant can move for acquittal if the victim “needed killin'”.
So, Don’t Mess with Texas!® – and don’t you go killin’ nobody don’t need killin’ …
That’s actually true. Once a scientist friend of mine, James Reddell, was investigating cave bugs on public land in Texas, and someone leasing the surrounding private land found him (on public land). The guy made the biologist kneel at gunpoint, and (accidentally?) pulled the trigger and shot the biologist in the foot. A Williamson Co grand jury decided not to press charges against the shooter.
A brief mention of the incident is here:
http://news.google.com/newspapers?nid=861&dat=19921030&id=wkdSAAAAIBAJ&sjid=czYNAAAAIBAJ&pg=3620,393949
I’ve already got the impression the shooter will get away with this from the way the article is written.
I don’t know what it may portend, but it certainly is bizarre that the shooting is treated as some kind of unimportant ancillary detail.
(Assuming this is ongoing. I didn’t look at the date on the paper. “Portend” would obviously not be the right word if this happened some time ago.)
Yes, it was very “Texan” that the shooting only merited a passing mention.
This was back when I was still in Texas, in 1992. The shooter was not charged. My fellow biologists and I worked hard to save these cave bugs, and it was a very controversial high-profile local issue, with many millions of dollars at stake and presidential candidates (Gov. Bush and H Ross Perot)involved. I’m surprised so few of us got shot. James took his shooting with a grain of salt. It didn’t slow him down at all.
I did get a graphic death threat in the mail–I was quite proud of it!
We also have the case recently in which a gentleman shot a sheriff (or marshall?), who was luckily wearing a Kevlar® vest, and then was not even held overnight. I can’t recall when or where this occurred, but I think the shooter was a militia type or general gun nut, and Federal agents we’re also there I think on a warrant – I tried to Google it with the various details, and came up instead with a dozen or so other cases where lawmen were shot and the shooter was not charged. Because forgivable misunderstanding.
I am trying to keep and open mind (and also tying to resist digressing) but it seems pretty clear there is a Brown Paper Bag test in these and too many other shooting incidents: that is, whether the shooter or victim has skin darker than a paper grocery bag seems to be a fairly good predictor of the outcome of the ensuing investigation.
OJ’s case is the rare exception to the rule, but it was the color and volume of his money that made all the difference – I’ll never forget that the first person Johnny Cochrane thanked after OJ’s acquittal was his jury selection consultant.
Jeez. That’s onnoxious.
“We need experts to judge such things, not untutored laypeople, no matter how well motivated they are.”
Gets me to wondering just what is meant by (words-to-the-effect) the right to be judged by a jury of ones “peers.” (re: “peer group”) Does “peers” mean simply a group of humans? Not from the behaviors/selection strategies of lawyers during jury selection proceedings.
Historically it meant commoners vs nobles. (Which is why a “peer of the realm” in England was entitled to a trial in the house of lords.) So John the carpenter couldn’t be judged by just the Norman elite. An important protection.
Here’s an excellent video by Dr. David Eagleman, on how neuroscience intersects with the law:
http://www.youtube.com/watch?v=EREriwV71mA
Description: “Dr David Eagleman considers some emerging questions relating to law and neuroscience, challenging long-held assumptions in criminality and punishment and predicting a radical new future for the legal system. “
Smokedpaprika, thanks for posting the link to that video – I found it fascinating.
Videos like that, along with books like Subliminal, Free Will, and Thinking, Fast and Slow, have me convinced that the U.S.’s justice system puts a veneer of civilization on what is really state-sanctioned barbarism.
Glad you found it useful. A friend sent it to me.
Dear Professor-I didn’t watch the whole trial (it was live on Court TV at the time), but the impression I got was not that the DNA evidence “confused” the jurors. Rather, the state of DNA evidence at that time was such that they probably just rolled their eyes and thought “these guys don’t know anything” and discounted/ignored the whole thing. There were enough elements of doubt introduced by the O.J.’s Dream Team to get an acquittal – the jury did not feel good about their verdict; they had no other choice. They did their job correctly; the prosecution screwed up. (That said, cut the prosecutors some slack because of the size of the case, political pressure, media spotlight, fear of Johnny Cochran.) Yes, I was one of those who cheered the verdict – “the System” worked this once. If O.J. were a rich WHITE person, no one would have been surprised, shocked, disbelieving (think Menendez Bros.). Just saying.
I was an expert witness for the defense (though I didn’t testify), and yes, the DNA evidence confused the jurors, though what it said was pretty clear. That’s because the jurors, as is always the case, don’t know how to adjudicate scientific evidence. And of course there were other reasons for doubt, like the stupid “if the glove doesn’t fit, you must acquit” trope. The problem is that if scientists judged the DNA evidence, they would not roll their eyes and asssert reasonable doubt.
Maybe you think the system worked because there was reasonable doubt in the view of jurors who weren’t that savvy, but I, for one, don’t think the system worked because someone who was almost certainly a killer got off. And if I were defending a white person, and that person got off in the same circumstances, I would have been just as shocked. The evidence was simply damning, no matter what color the defendant. The prosecution could have done a better job, but the problem was the jury. And of course O.J. was found liable in the later civil case.
I can’t read the jurors’ minds, but I’d venture that the demonstration of police racism and evidence mishandling was enough to create a reasonable doubt.
I’ve said for a while that the trial looked like a badly done attempt to frame a guilty man.
That is the single best one-sentence description of the Simpson trial I’ve seen.
As bad as the American Health Care can be, the treatment of mental problems of all sizes and shapes is worse. This particular fellow probably should not have been out walking around because he had been in a treatment facility and had just recently been let out. In fact, the military most likely should never have let him in the military due to his mental problems but like many, they just slide right past it.
Today, a great many mentally ill people end up in prison, just like this guy. The places to hold and treat them properly for their problems are going away.
The state I live in had 4 state mental hospital facilities for more than 100 years. Now they hold more like 20 or 30 full time patients instead of 2000, yet we have millions more in the population today. They put them on meds and turn them loose. And now they are totally closing 2 of those 4 facilities and the state will have even less available.
There would be nothing wrong with fixing the legal system regarding the problems well covered in this piece, but the system to handle the mentally ill outside of prison is going away.
Being in the community is not necessarily a problem imo. The problem comes with patients not being adequately monitored – that’s where it seems to me the system is breaking down. Also, if the patient has a crisis there’s nowhere for them to go to get through that because, as you say, they’ve closed too many beds.
Another shameful legacy of President Reagan; getting rid of the Mental Health Systems Act…no more federal community mental health centers. Reagan was a very foolish man who didn’t understand mental illness and associated psychiatry with Communism. And it’s ironic that he eventually was shot by someone with mental illness.
There is the personal freedom problem. Probably almost none of the people WANT to be in those hospitals. At one point thousands were deprived of their liberty because ‘someone’ considered them dangerous.
We have a right to be eccentric. To live by our own priorities (as long as not harming others), and it’s worrisome when authorities get to second guess our freedom without damned good reason.
The barrier to involuntary institutionalism should be held very high.
That point occurred to me too when I read ProfCC’s statement that :
I I was of a forgiving disposition and not incurably cynical, I’d have thought that a military that thought teaching schizophrenics how to kill was, in the overall view, a socially sensible thing to do, might possibly reconsider after their recruits go on to kill more people they’re not ordered to. But to be honest, I suspect that it’s unwritten policy to recruit people with such problems because they may be easier to turn into killers. OK, they might be harder to turn off afterwards, but that’s hardly the military’s problem. Is it?
Tempting as it is to agree with you, I suspect that’s not accurate. I’d draw an analogy with explosives – you want ones that are difficult to set off, not unstable ones. You don’t want them going off until you ‘tell’ them, quite forcibly, to do so.
More likely, bored recruitment clerks will pass anything that can walk, talk, and not actually set fire to the furniture.
I don’t know what it’s like in your country, but in our the task of attracting young men into the armed forces is generally done by ex-front line soldiers too old (but not too maimed) to work on the front line. The whole image put forward by the military recruitment organisation is one of activity and excitement (but no mention of killing), not one of steadiness and tedium. A “bored recruitment clerk” would be more destructive to recruitment than a maimed recruitment clerk.
Well, in NZ, the recruitment ads on TV are all about what an exciting life you can have in the armed forces. A cross between Peace Corps and adventure tourism. The suggestion that foreigners might occasionally wish to kill you doesn’t come up.
I have no idea what screening prospective applicants might go through.
I’ve got a friend down in Stephenville who made it to the 3rd round of jury selection. From what he said, I’m not surprised at all about the verdict. The defense admitted he did it, but tried to go with insanity. Unfortunately for him, as the prosecution pointed out, the law in Texas is exactly as you quoted from the Washington Post. Per the way the law is written, I’m not sure the jury had any other choice.
I had not been able to follow the case closely, but I though it very problematical to decide ‘not insane’ b/c the accused expressed understanding of what he did later the same day. I had thought (but am not sure) that a psychotic episode could come and go in a matter of hours. During an episode a person is insane. Hours later, not insane.
I heard the verdict on Fox. They’re praising the work of the state trooper who got him to admit he knew what he did was wrong. They were also saying there are apparently plans among current prisoners to get this guy on the inside. It was sickening. This man clearly needs help and instead he will be another person made worse not just by prison, but by solitary, which will save him physically and destroy him mentally. And no one cares because he killed a hero.
… a hero whose qualification as a hero rests on the number of people he had killed. There’s all sorts of irony there…
But I do agree with your point. Unfortunately many (most?) prisoners won’t have the mental capacity to see past the ‘killed a hero’ trope.
I have to wonder why anyone would think that a good treatment for a paranoid ex-soldier suffering from post-traumatic stress is to take him to a firing range and hand him a loaded gun.
I wonder if your sentiment has occurred to at least one Texan.
That is certainly correct and sad. Chris Kyle was a super soldier, as I remember from reading the book. But he wanted to help those coming back with mental problems and he had no business doing that. At the time it happened it almost seemed to have some connections to the Sandy Hook disaster. Mom has a nut job for a kid, so lets get lots of guns and go shoot.
You would think playing with guns would top the list of things it should occur to anyone to avoid when dealing with a soldier suffering severe, combat-induced PTSD.
I think this shows just how attached some people are to guns. It’s perhaps not unlike substance addiction. Likely consequences just aren’t considered. The gratification they get from shooting must not be preempted by anything.
This just seems ridiculous to me. If a person is deemed to be insane in some way (e.g. PTSD, schizophrenia) how can that person’s testimony be considered reliable when they say “yes, I knew what I was doing.”
And how can, again — an insane person — be counted on to reliably introspect their mental state at some point in the past?
It also seems to me possible to be insane and know exactly what one is doing, and simply unable to help one’s self. That seems to be the very definition some types of insanity.
Also, evidence was presented to the effect that Routh was sane because he went to Taco Bell following the incident. Isn’t that evidence for insanity? A rationale person, it seems to me, would be so freaked out that they’d want to immediately go into hiding. Hunger wouldn’t be an immediate priority.
My feeling on this is it was simply about revenge, Texas style, for Kyle’s death. It’s sad how Routh didn’t receive the treatment he obviously needed that could’ve prevented this. We keep hearing about the problems with the VA and veterans not receiving treatment — this is more evidence for that very thing. And I’m surprised at the lack of sympathy for this guy from those who harp on supporting veterans with issues like PTSD.
T. E. X. A. S.
“And ideally as well, the jury’s decision should be only “whether the person committed the crime or not,” not “whether there were mitigating circumstances.” ”
I think this is the right approach. There might be details about what evidence can be used, and so on.
In my view, in the limit, *prisons and punishment go away*. Instead, more and more treatments and such are available, and those who commit crimes are treated, trained, etc. to the extent possible. Sometimes that might be for life, sometimes not, depending on the condition and the state of the art.
If one is in favour of revenge, one can say so, and we can start from first principles. But if the idea is to prevent from happening, prisons and punishments generally are not the way to go.
As for deterrence, I know of the figurese that show for some crimes severe punishments (e.g. death penalty) are antideterrents, so … That said, I think the limiting process above also applies here, but in reverse. If one has “Minority Report” worries about this, I would point out that we do this anyway – the mistake in the story is in my view wanting it to be 100% successful “immediately” and ignoring self-fulfilling prophecies and other complications.
Indeed.
If we were serious about reducing crime, we’d first shut down the war on some drugs by decriminalizing self-medication and funnel all that money (and a sizable chunk of the defense budget) into education, including free vocational schools for adults.
Next, we’d shift the prison system entirely away from punishment and to, first, mental health treatment for those who need it; and, second, for all, vocational rehab.
Also of vital importance is Medicare for all, with mental health given every bit as much respect as any other type of health treatment.
Do that and crime will become pretty much a non-issue.
The “kind and merciful” religious people will be howling about how this means “coddling” criminals and “rewarding” them for their misdeeds. That crowd can go piss up a rope; all they care about is satiating their bloodlust with righteous vengeance.
b&
The most obvious problem is that no society existing in the actual world can fund such programs.
Until crime is eliminated or treated medically, we need a system to keep people in conditions where they cannot pose danger to others.
Also, most people think that at least some criminals deserve punishment. We can condemn this sentiment all we want (I am not sure), but it is not going anywhere.
I don’t know about other countries, but the United States could trivially fund this sort of thing. It likely wouldn’t cost even as much as a single aircraft carrier. It’s a question of priorities…and our priorities are heavily focussed on killing brown people and making the richest people even richer.
Of course — but that’s not what American prisons are about these days. American prisons are primarily about getting slave labor from brown people and funneling taxpayer money to the rich people who own and operate the prisons. The actual number of people who currently are in prison who would pose a threat to society even after job training and placement assistance…well, that number is a small fraction of those in prison.
Most people used to take their kids to the town square to watch people being drawn and quartered, and they did it for entertainment. If that sentiment went away, what makes you think our modern vestiges of barbarity can’t?
b&
Just about the funding thing, I guess that you are happy with the funding level of everything in America?
What on Earth gave you that impression? I explicitly wrote that we’re spending way too much on killing brown people and enriching the richest and nowhere near enough on education and mental health services.
b&
You seem to believe that if you somehow get some extra money, you won’t have to prioritize its use and it will be enough to solve all problems of your education and health systems.
Again, what’s with this “extra money” stuff?
Nowhere have I even remotely hinted that we should be spending any additional amount on top of what we’re currently spending.
Quite the contrary.
We need to stop spending money on killing brown people and making their lives miserable.
We need to stop spending money on making very rich people even richer at the expense of everybody else.
At least some of the money we stop spending on those two things we should instead spend on education and health care.
That’s been there in every post I’ve written on this subthread right from the very beginning. “…shut down the war on some drugs…funnel all that money into education…shift the prison system [to mental health treatment and vocational rehab]”
Are you not reading what I’m actually writing, and instead imagining that I’m dancing to the strings of some strawman of your own creation?
b&
You said that with the money of one aircraft carrier you can fund these programs, as if this is the only problem of America.
Your idea that the legal system is a conspiracy to abuse “brown people” isn’t worth a serious response.
I wrote the bit about the aircraft carrier to put in perspective the relative sizes of the budgets involved. An almost unnoticeable amount of trimming of the enterprise of killing brown people abroad would more than suffice to pay for an overwhelming amount of improvement in the lot of brown people at home.
And if you aren’t aware that African-Americans are overwhelmingly disproportionately represented in American prison populations, you’re not knowledgeable enough to participate in this conversation.
Specifically, “[a]ccording to the US Bureau of Justice Statistics (BJS) non-Hispanic blacks accounted for 39.4% of the total prison and jail population in 2009 (841,000 black males and 64,800 black females out of a total of 2,096,300 males and 201,200 females). According to the 2010 census of the US Census Bureau blacks (including Hispanic blacks) comprised 13.6% of the US population.”
b&
I am not saying that the system is flawless. One of its biggest flaws is different treatment of different groups. This isn’t unique to the US. The idea that the system is designed (primarily) to abuse these groups is a conspiracy theory, as sound and reasonable as the idea that 9/11 is the work of the American administration.
I am a big fan of legalizing certain drugs. This won’t eliminate crime.
Until your proposed alternatives to the current system take effect, you’ll need to do them in addition to other measures to incapacitate people who pose danger to others. This costs money.
Ben, I am not a blind fan of the American legal system. It’s broken and the huge number of prisoners is one excellent evidence for that. You don’t need to convince me of this. The explanations you provide for this are not serious.
Also, it could be nice if you were not so rude to people who dare to disagree with you.
Again, you demonstrate complete ignorance of America, and especially recent history and current affairs.
Our legal system hasn’t changed significantly of the course of our history. Mere decades ago, that legal system was one of the key pieces in the systematic racism that the American South (of which Texas is most emphatically a part) is so infamous for. Police in the South were often members of the Ku Klux Klan and frequently turned a blind (or even encouraging) eye to lynchings, and were simultaneously most eager to prosecute Blacks for even the slightest perceived insult. Prosecutors, judges, and juries were in on it as much as the police.
This is not some sort of conspiracy theory; this is the history you read in school textbooks.
And this is not an artifact of generations-past history; there are still sizable pockets of the country where this same racism is nearly as overt as it was in the ’60s, and huge swaths where it continues to bubble just under the surface. Witness the recent unrest in Missouri in the wake of a young black man shot in the back by a white cop on a white police force, and the similar unrest nationwide after several white New York City cops strangled to death a black man who had already surrendered.
Hell, it’s even coded into our Federal laws. There’s no pharmaceutical difference between powdered and crack cocaine, but rich whites prefer the former and poor blacks prefer the latter…and the penalties for the latter are significantly more harsh than the former.
Again, that you’re clearly not aware of these basic facts of American life and culture…may I again suggest doing some serious boning up before wading into this debate?
b&
There is a huge difference between thinking , as I do, that the legal system is discriminating against certain groups, and believing, as you seem to do, that this is what’s it’s main purpose is.
Obviously, you unable to grasp this difference and at this point its getting boring to hear your repeating the same nonsense in a disrespectful manner.
<sigh />
Ever heard of the for-profit privatization of the American penal system? Know anything about what happens to assets seized in anti-drug operations? Were you even remotely aware that different forms of cocaine have different penalty schedules?
The American Black male prison population significantly outnumbers the entire Indian prison population. And I wouldn’t normally think I’d have to point it out, but it would seem prudent that I mention that almost a billion more people live in India than do in the States, and barely more than one in ten Americans is Black — and half of them are women.
Even if it wasn’t the actual intention of those who designed our criminal justice system to use it as a tool to oppress Blacks and profit from them…there’s absolutely no possible way to deny that that’s the actual purpose that it overwhelmingly serves, and the only ones who seem to think that anything should be done about it are the same people who realize that Dr. King’s Dream, though it may be coming to light, is still a long ways away.
b&
If he was insane, why’d the military take him? Why did he have access to firearms? Texas is so obsessed with protecting guns that they’ll let everyone else die.
There is so much WTF in this story.
This sentence speaks for itself:
“He had been diagnosed with schizophrenia before he entered the military…”
I am not expert in mental health but does it really make sense to take a schizophrenic with PTSD to a shooting range as part of his “treatment”?
It’s like handing a pyromaniac a box of matches and wondering why something went wrong.
Sean,
I joined the military in 1989 and served 20 years. Like all other servicemembers, my in processing was done at a regional facility known as Military Entrance Processing Station (MEPS).
Since there is no national medical records facility the military can go to for records to determine a potential servicemembers fitness, they have to ask the servicemember if they have any medical issues that would prevent them from serving and perform basic medical exams. That’s it.
If Routh didn’t tell the doctors at his MEPS that he had been diagnosed with a mental health condition, they would have had no way to know unless he was having a bad mental health day and failed the simple tests they gave him at his in processing.
Combine this with the fact that the standards for what is a ‘good’ candidate for military duty is are raised and lowered by the different branches based upon their latest enlistment quota. These quotas change based upon the number of servicemembers currently on active duty, the DOD budget, number of servicemembers expected to leave that branch at the end of their current enlistment contract next quarter, the number of retirees expected next quarter, and the number of active conflicts the US is involved in at any time, too many servicemembers of a certain rank, not enough of another rank, etc. All these factors can cause the standard ‘fit for duty’ to fluctuate wildly quarter to quarter.
So it is unfortunately very easy for someone genuinely unfit for duty to slip through the cracks.
Prisons…
lets work towards doing away with them totally
Do let us know when you’ve worked out how to abolish crime.
That was a rather peculiar & unproductive comment. Prison abolition does not require the abolition of crime – there’s more than one way to deal with miscreants.
Incarceration has become the knee jerk & nowadays unremarkable ‘solution’ to dealing with crime & criminals. Alternatives to prison is a conversation well worth having!
I agree that reducing prison population is a worthy goal, especially in the USA, however there are many in prison who should never be let out unless very large improvements in behavior modification are made. Perhaps not then.
Robert Pickton murdered, butchered and fed the corpses of over 20 women to his pigs. I cannot see a person like that ever getting out of prison.
I am not a fan of executing people since it’s clear there have been many on death row who were innocent, and after executing a person there is no do overs.
It is simply too final considering the number of police and prosecutors caught doing wrong, almost always without any sanctions.
I would suggest a good first step would be to stop and reverse the privatization of prisons in the USA and elsewhere.
When i was in Children’s protective Services and sent kids to a psychiatrist, I would usually get a call asking what diagnosis I needed.
Meaning, what does the shrink need to say in order to qualify the kid for a treatment program.
It’s all check box medicine, everything geared to pushing the right buttons to get the nugget of feed from the dispenser.
“One thing we must do is ensure that we try to mitigate those environments.”
The fact that school districts are funded by property taxes is a big reason why these environments continue to deteriorate. Some school districts of course can benefit immensely if they happen to be in “rich” neighborhoods. In poverty stricken neighborhoods, good luck. There should be a minimum threshold for funding public schools. Like that will ever happen…sigh.
America is the only Western country I know of with this insane method of funding schools. It’s the main reason it’s constantly slipping down the PISA rankings.
Jerry, pleased to hear you don’t take a fee for your expert testimony.
I listened to a BBC exposé of expert testimony in the court room. What stands out in my memory is a lawyer’s description of his telephone conversation with a possible expert witness (I’ve forgotten the subject).
After hearing the background to the case, the expert stated his general approach and advised on suitable questions to be put to him in the cross examination. The lawyer said, “Hold on a minute. What you’re suggesting is more likely to convict rather than acquit my client.”
Expert: “Sorry. I assumed you were acting for the prosecution.”
Even given the “know right from wrong” standard, I don’t understand how you could apply it.
If you don’t know the difference, you can’t give a meaningful answer to the question “was X wrong?”
Yet they convicted him on the basis that his answer was meaningful. The determination of sanity presupposed sanity.
As a Texan, I can tell you that “who” he killed probably matters more than anything else having to do with this case. Chris Kyle is almost universally worshiped around here because of what he represents; which is a feel good story about a conflict many Americans would otherwise like to forget ever happened.
Had he killed an illegal immigrant, the system would have found a way to exonerate him and provide him with the treatment he probably desperately needs– I’m sad to say.
In fact, everyone is “insane” in some way when they commit a crime, for something about their genes and environment has led them to a situation where they do a bad thing, and they cannot help themselves, regardless if they know (or internalize) right from wrong.
That seems rather too blanket a statement to me. There are many forms of crime, inlcuding those committed out of desperation, for which every civilised society would accept extenuating circumstances, those that were done in ignorance of the law, those that are victimless, those that marginalised people cannot help but commit because others have built a catch-22 around them (think making it illegal to sleep in the street in a society that doesn’t provide services for the homeless), and finally crimes that are so obviously inhumane that one really would have to be very disturbed to commit them.
So yes, while I agree that the focus should always be on a mixture of reintegration into society, deterrence and protection of society from crime, there are still different levels of responsibility. Saying that criminals couldn’t help themselves anyway because determinism misses the most important aspect: could they not help themselves because they were desperate, because other agents unfairly left them no choice, or because their character is one that tends towards crime in a situation where somebody else’s brain wouldn’t?
The point is that whatever punishment they get, the consciousness feeling the punishment did not deserve it.
As a determinist myself, I recognize the absolute necessity of extreme measures, even the death penalty, in order to protect society when all feasible alternatives have been exhausted. There are people who are beyond rehabilitation.
It has nothing to do with fairness, and everything to do with the well-being of the collective, but that doesn’t make the observer behind the brain any more guilty.
When I was younger, and PenisOutOfTime did more of the thinking for MooT, I strayed from committed relationships and hurt women whom I loved. I’ve been a good boy since my early 30’s, and I owe my reform entirely to my maturing brain and the associated subsidence of hormones.
Proper medical treatment of the effects of being both ADHD and on the bipolar spectrum have also made me more disciplined and consistent in my judgment. Throw in good looks and some defensive narcissism and charm born of living with similarly dysfunctional people self-medicating with alcohol and heroin and you’ve got the recipe for a person who can be quite selfish and hedonistic.
So I’m a crazy person, nowhere near as damaged as I would be were I in Mr. Routh’s boots I’m sure, and one thing I can tell you is I made no calculation of right or wrong at the time I was doing wrong – any more than I do day in and day out when I am doing right (or right-ish). And when asked – as I was asked – if I “knew” what I did was wrong, of course I said I did. I’m not a monster!
So, no, I don’t think hindsight – either as a post-facto judgment or recollection of state of mind – is dispositive as to whether a person is sane or capable of necessary self-control. My understanding of my youthful goatishness amounts to explanations not excuses for hurting others. We are our bodies and responsible for what our bodies do, it’s just “God playing dice” that I’ve never done any criminal violence and am not inclined to do so. It sucks that the system we have is what we have, but it is what it is. It names the system a sham that Mr. Routh doesn’t clear the bar for an insanity defense, but it also sounds like his defense was a non-starter in the Lone Star State. Maybe his was the only way in Texas to effectively confess and pray for mercy, but mercy is the thing that seems to be in shortest supply in Xtian Amsrica. Like their savior ever said anything about mercy – feh!
The really strange thing about the “did he know right from wrong”? question is that it’s being used the wrong way around.
Not being able to tell right from wrong indicates psycopathy – which is currently untreatable. (Or if not psychopathy, then something else, which whatever it is, is also probably untreatable.) In this case the thing to do is more likely to be to impose the maximum sentence possible, to keep untreatable violent psychopaths out of circulation as long as the law allows.
Someone who can tell right from wrong is at least one step closer to being able to act on this knowledge; I would expect the courts to offer these people on average shorter sentences.
…By the way, I also think the question of free will is a complete red herring here. I think people think free will is relevant, because if we don’t have it, punishment is undeserved – but whether or not the convicted criminal deserves to be punished is also a red herring. The goal of the justice system should be to deliver as much crime prevention as possible with as little punishment as possible. And all punishment is unpleasant – it wouldn’t be punishment if it weren’t – and does not magically become less unpleasant, or less of a cost, just because the victim happens to deserve it.
In Israel we don’t have juries, and we face similar problems, although here lacking ANY real ability to abstain from committing the (otherwise criminal) act.
Courts are interpreting “any ability” of the accused to either understand what he did, the wrongfulness of the act or to abstain from it very strictly, making it a much narrower defence than the letter (and, in my opinion, also the spirit) of the law allows.
Real or not, people have a strong sense of free will.
The trend in legal systems (at least in the West) since the second half of the 20th century is actually towards retributivism and away from utilitarianism. Free will is a keystone of our legal reasoning and this isn’t going to change in the foreseeable future.
Not disputing anything you said, just I think its sad that most justice systems are vengeance based. Of course much of this mindset comes from theology, and without Free Will, the moral foundation of Abrahamic religions as well as the eastern concept of karma would just collapse.
I know that this won’t make me popular hare, but I think that there is free will. I am also 100% materialistic and study law, so it’s a real problem for me. At a personal level, I (kind of) solve it by assuming that we are (still?) missing something in the way the brain works, which makes it at least sometimes or partly non-deterministic.
The opposition to utilitarianism is mostly liberal and not religious, based on the Kantian argument against using people (even the convicted criminal) as means to other ends (like deterrence). Even in systems which emphasize the utility of punishment, some retributive element is present, if only in the form of reserving punishment for people who actually acted wrongfully.
Anyway, punishment of mentally incapacitated people doesn’t make sense from a retributive point of view, but can be easily justified by utilitarian arguments. For me, this has always been a strong argument against preferring utility over retribution in punishment.
I’m more or less with Dennett on the topic of free will, but retributive justice strikes me as abhorent – and the “mentally incapacitated” case only brings this into clearer light.
On a utilitarian theory of punishment (the one I think is sane and enlightened – regardless of what we end up saying about free will), pubishment is always bad, and always to be minimised. No matter what, we should always strive to avoid punishing people unless the cost of not doing so is greater.
On a retributive theory, punishment is sometimes good – in itself, worth doing even if there are no dowstream benefits. This is what really sticks in my throat.
A good utilitarian case can be made for incarcerating people who are dangerous, mentally handicapped or not; or forcibly treating them, medically handicapped or not. But that’s not the same thing as punishing them – causing them some sort of pain for the sake of it. It’s only the utilitarian – not the retributivist – who wants to reduce the total amount of punishment to the smallest amount possible.
Without some element of retributivism in the sense of reference to desert of punishment, we can justify “punishment” of people who committed no crime, if this serves a purpose (for example, we may arrest people in advance, to prevent the crime).
Rertibutive punishment is difference from vengeance in that it requires some kind of proportionality between the severity of the crime.
The biggest problem I have with it is that it is paternalistic.
“Without some element of retributivism in the sense of reference to desert of punishment, we can justify “punishment” of people who committed no crime, if this serves a purpose (for example, we may arrest people in advance, to prevent the crime).”
Depends on what you mean by arrest.
If some day we develop the technology to accurately predict crimes, we could intercept a would-be criminal and help him, if possible, to resolve the issues that would have led to his crime.
If you’re talking about jailing people minority report style, I’m sorry to inform you that it would not pass under utilitarianism because it would not be practical, every person you jail is a disruption to the function of society, a country that makes that many arrests would destroy its own economy, lead to civil unrest, and eventually be superseded by a more efficient country.
And if “the would be criminal” cannot be treated? Would that then be OK to detain them?
That a person has already committed a crime does not necessarily mean that he poses more risk than others. If the sole requirement to justify arrest is utilitarian, then past conduct should not be a factor at all.
What if we had a way to identify people who are likely to commit crimes? Would you agree to arrest them in advance to prevent crime?
past conduct would certainly be factored in in the process of predicting future behavior.
Of course.
But there may be other factors as well. We cam imagine a person who committed a serious crime (say, murder) but, under certain conditions, does not pose a a special risk. We can also imagine people who have not committed any crime yet, but are, for some reason (say, belonging to a criminal family of which all other members are criminals) likely to commit a crime in the future.
Would you say that detention of the latter is more justified than detention of the first? To me, this seems an inevitable conclusion of completely abandoning retributive considerations and take a strictly utilitarian approach.
red herring.
i am not an expert on predicting criminal behavior. i’m guessing you are not either.
nobody in this discussion knows exactly how to accurately predict crime. in fact the science and technology isn’t there yet. the point is not whether method A to predict a crime is appropriate, but rather what do you do after you’ve been able to predict crime.
What this means is that we are operating under the assumption that we as a society hypothetically have the method to accurately predict a person’s criminal tendency.
The point of a justice system should be to prevent harm to members of society. So, if we had a method to predict crime, perhaps a method with at least 95% accuracy and thus deemed fairly reliable, then depending on the severity of the crime and the danger the criminal potentially poses to society, he should definitely be detained until the factors pertaining to his criminal tendencies has been investigated, resolved and he is no longer a threat to society. If a person is found to be wrongly detained, he would be compensated for his trouble, and the system could use the data to improve its accuracy.
As for your example of a murderer who we’re completely certain is not going to commit a serious crime for the rest of his life, and if we’re sure that letting this guy go won’t encourage crime more than if the murderer was punished, then said murderer would be set free. BUT THEN the real issue would be how this murder happened in the first place, and what society and the justice system can do to prevent similar future murders.
The problem with retribution based justice is that hurting this person doesn’t bring back their victim. In a ideal retributive system, the punishment always fits the crime, and because people are supposed to be afraid of punishment, so they will stop being criminals. It is a system of fear and oppression, it’s PURPOSE is to harm people the same amount that person harmed others.
The “utilitarian approach” takes whatever method is most effective with the PURPOSE of preventing the crime from happening in the first place. Sometimes fear is effective, often it isn’t. Point is, the most effective method (or combination thereof) crime prevention that comparatively produces the most positive effect on society will always be the utilitarian approach.
In ancient times, the retributive approach may have been the utilitarian approach then. But as crime investigation and crime prevention techniques progress, the retributive approach is losing its relevance.
Also, if you see something wrong with a person not being needlessly harmed enough, then you just might be a violent blood-thirsty psychopath.
First, you seem to assume that retributive justice calls for severe punishment, but this is wrong. It requires that the punishment is proportional to the severity of the crime. In at least some cases, it dictates a milder punishment than the one justified by utility. So it is not necessarily “blood thirsty”.
I am not advocating a purely retributive or utilitarian system. I think that any reasonable system must involve both.
We need a utilitarian justification for punishment, as a mean to prevent punishment which is causing more harm than it prevents and a retributive justification, to guarantee that we don’t punish innocent people, even if it may serve that or another greater good and to preserve proportionality between the severity of the crime and that of the punishment, which utilitarian considerations may justify violating.
“I am not advocating a purely retributive or utilitarian system. I think that any reasonable system must involve both.”
As I hopefully made clear, it is utilitarian to involve elements of retribution whenever appropriate. A utilitarian system certainly can, depending on the situation, involve retribution, but retribution is not necessarily necessary for a justice system which’s goal is crime prevention and social stability, to function, again depending on context.
“In at least some cases, it dictates a milder punishment than the one justified by utility. So it is not necessarily “blood thirsty”.”
Punishing someone more than required for deterrence is blood thirsty. Punishing someone under the threshold of effective deterrence is just silly. What would be the point, except for the hell of it? (unless combined with some other crime prevention method, in which case the severity of punishment would still be “justified by utility”, and still have nothing to do with punishment crime proportionality.)
At this point I need to ask: What is the reason for the punishment to fit the crime? Why should the punishment be proportional to the crime? And what do you even mean? How do you calculate this proportionality?
“to guarantee that we don’t punish innocent people”
Everybody is innocent. Criminals didn’t choose their genes and personality. We are all innocent of our actions. So the point of justice is not to persecute the guilty, but to protect the cooperative innocent from the uncooperative innocent. The cooperative innocent are the people who for whatever reason have agreed to take part in society, who have signed the basic contract agreeing that they will obey most of the laws in order to enter a mutually beneficial relationship with society. The uncooperative are the people who have breached the social contract who are harming members of society, and since society needs cooperating members to function it is beneficial for society to protect its members, and prevent crime.
You have a simplistic view of pragmatism. Pragmatism is about efficiency.
At this point you may be wondering, then why don’t we just kill everyone?
The answer: Because that is inefficient and impractical. World peace could certainly be achieved if everyone just died, but guess what, I don’t want to die, not even for the greater good. We will do everything in our power to prevent getting killed, and most likely we will succeed in preventing our deaths. Attempting to kill everyone would just cause massive amounts of civil unrest, and run contrary to the purpose of social stability. Even if you manage to kill most people, as long as there are survivors and even some resemblence of an ecosystem, then the only peace you would create would be pieces of corpses. In time society will rebuild, reform, and the problems of crime etc would still be unsolved.
Pragmatism, so-called utilitarianism, is about efficiency. The reason people don’t violate sanctity of life, right to privacy etc, is not out of some arbitrary sense of honor, but because to do so would before starters unrealistic, among a plethora of other reasons.
You’re like William Lane Craig telling atheists “if there’s no god, then why should you have morals”. The answer? It’s simply in my best self interest to adhere to the social construct known as morality.
Once you think that desert cannot play a role in your theory of punishment, you cannot involve any element of retribution.
Requiring proportionality between the crime and punishment, in a world where we have many examples of terrible things done to people in the name of “a greater good”, is a setting a cap on how much we can harm to convicted criminal to serve the purposes of the legal system.
What you say about cooperative innocent vs. uncooperative innocent, taking part in society, etc., if you refer to past actions, is retributivism is poorly made new clothing. If what you mean is to cause people to cooperate and take part in society, then people’s past behavior isn’t more relevant to punishment than any other element of their character which may help predicting their future behavior or serve to prevent crime in any other way.
If you think that I am against deterrence, you are wrong. All I am saying in this regard is that deterrence or any other need of society, cannot strip people from their rights. Your approach implies that any punishment is acceptable if it serves society. This is what I disagree with.
In regard to your last paragraph, I disagree that people adhere to whatever you wish to call moral just because it serves their self-interest, unless we define “self interest” so broadly, that it actually becomes meaningless. We feel empathy. When you help a random person who fall on the street back to his feet, you don’t do this after calculating your interest. I am familiar with the argument that we do this in hope that others will do the same for us, but I don’t buy it. We don’t always think about it when we help others (to say that we consider this unconsciously is a wild guess as good as saying that God is causing as to do this). We do this in situations where the chances of our behavior affecting how we are treated in the future are zero or very close to it.
We feel that there is right and wrong, independent of punishment and reward.
Your idea that “Punishing someone under the threshold of effective deterrence is just silly” is exactly what makes me cringe in fear when considering a purely utilitarian system. Unless you can either justify cutting the hands of thieves or prove that it does not deter from stealing more than the petty punishments used Western nations, you don’t actually believe in what you said.
“setting a cap on how much we can harm to convicted criminal to serve the purposes of the legal system.”
Suppose slowly torturing someone to death was demonstrated to serve as a valuable deterrent.
So the justice system slowly tortures people to death.
But to our social instincts, torture just seems cruel and inhumane. We will be unsettled by the type of torture: what if we are the ones in the place of the poor sap being tortured right now? Regardless of innocence or guilt, nobody wants to be tortured like that.
This harsh punishment will increase the insecurity we have, and make the people fear the government. Whenever people fear the government, a society becomes volatile.
Any small trigger would then cause a massive backlash against these right-violating policies, which could easily lead to larger social unrest. Criminals will be reluctant to surrender and become desperate instead. Eventually the cons of “violating human rights” outweigh the pros.
What I am trying to demonstrate is that part of utilitarianism *is taking people’s morale and approval into account*. That automatically sets a cap on the amount of harm that can be done to a criminal for the purpose of deterrence.
Again, notice that in my example above, there is no arbitrary sense of honor or fairness invoked, its just simple maths.
“In regard to your last paragraph, I disagree that people adhere to whatever you wish to call moral just because it serves their self-interest, unless we define “self interest” so broadly, that it actually becomes meaningless. We feel empathy.”
It would be a bit difficult to explain this to you because you believe in free will, but I will do my best:
It is in my self interest to love, because I am a social animal that needs affection.
It is in my interest to help others relieve their pain, because my empathy makes me feel their pain vicariously, and I dislike pain, vicarious or otherwise.
It is in my interest to cooperate with society, because only in society’s survival can I then get the most benefits of society – electricity, running water, sanitary food, technology etc.
I am moral because being moral makes me more happy than I would be if I weren’t moral.
There is no grandiose sense of selflessness, because I am forced by circumstance to be a “moral” person.
In your worldview, a person who is forced to be moral isn’t really moral, but I’m telling you that it doesn’t matter if kindness was of a person’s own initiative.
I disagree that right and wrong has nothing to do with punishment and reward. It has everything. For starters, when you do something you think is wrong, you are being punished with the feeling of guilt.
“Your idea that “Punishing someone under the threshold of effective deterrence is just silly” is exactly what makes me cringe in fear”
Quite the opposite. When I say that, what I mean is if the punishment has no positive effect on society, then you might as well NOT PUNISH at all. And if not punishing makes you cringe in fear then…bloodthirsty much?
I want to make clear exactly what my goal is: I want a society in which as few people get harmed as possible. Criminals are also people, thus they too fall in that category.
IF harsh punishment really was the best option, then it would be a no brainier. But, and maybe you can’t understand this, the issue comes down to HOW exactly do you calculate which option is best. And when your aim is to prevent harm, a solution where people are harmed is *obviously not the ideal option*.
As in the example I set in the beginning of this comment, whenever you are considering harming a person, you must seriously consider IS IT WORTH IT?
As I have demonstrated, harsh punishments are most likely NOT WORTH DOING.
Speaking of Dennett’s Free Will… His position is to essentially change the definition of free will in order to appease people who like the term so much. Nevermind that free will means a person has absolute authority over his actions, which nobody does because once you backtrace the path of causality, eventually you’ll get to a point where the person had absolutely no agency over.
Dennet’s free will means a person’s ability to make a decision. Hell, even my ti84 is able to decide what is the answer to 3×4, doesn’t mean it has free will.
Basically dennet is trying to call magic tricks witchcraft, instead of doing the correct thing and making the term witchcraft obsolete as a literal term.
Magic tricks where a person creates the illusion of the supernatural via natural means, are real. A person’s ability to make decisions is real.
Witchcraft is nonsense. The ability to make decisions outside of causation, ie. the actual definition of Free Will, is nonsense.
Free Will requires its current non-compatiblist definition in order to carry weight. Once you change its definition, every argument based on free will stops making sense.
I know it’s slightly off topic, but isn’t this film just a Republican fetish film? I find the Oscar’s backlash extremely troubling. I quote: “It’s about fighting, it’s about war, it’s about fighting for the cause”.
https://www.youtube.com/watch?v=ejF8LjohO-Y
Is this, seriously, and genuinely, 2015 Republicanism? Because I feel genuinely sick over the thought.
It’s a satire, posted to YouTube about five years ago. One of the commenters described it recently, including a bit of context that presumably wasn’t the intent of the filmmaker: “The ‘making of’ the fictional sniper movie in Quentin Tarantino’s ‘Inglorious Basterds’. This has been compared to Clint Eastwood’s American Sniper – just a matter of who you think the ‘bad guys’ are.”
United States Federal Court judges can appoint a Special Master to help the judge and jury in fact-finding related to scientific and technical issues.
https://bulk.resource.org/courts.gov/fjc/sciam.4.spec_mast.pdf
The idea is to avoid the confusion caused by duelling expert opinions about facts. I don’t know whether state courts can do this as well.
Courts here can do this too, but the court is bound to accept the opinion of the expert it appointed.
The thing which angers me most is courts insisting on outdated psychiatric classifications that psychiatry doesn’t recognize anymore as valid.
Urgh
The court isn’t bound…
“…as a determinist I think that since we have no choice about what we do, punishment should be based on three things: … 2) setting an example for others to deter them from similar acts,”
If we have no choice about what we do how is any example going to deter us from any act?
What is wrong with a nation where a sniper who kills in cold blood from hiding, not in heat of combat, considered a hero?
Yes, I wondered about that as well. The same question might be asked about jihadis and bombers of abortion clinics.
I don’t agree with your final paragraph, however. As Shaw wrote, the aim in war is not to die for your country, but to make the enemy soldier die for his.
Not saying it isn’t a part of war; just saying shooting unsuspecting people from a hiding place doesn’t make you a hero.
“If we have no choice about what we do how is any example going to deter us from any act?”
We have no choice, but there are factors that influence us. Every decision we make is the result of many factors acting upon us – consciously and subconsciously.
The reason punishment somewhat works as a deterrent is because depending on the person, there is a chance it can influence that person, and in some cases the influence of the deterrent might just hit the tipping point causing a person who would have committed a crime to not do it, and that is the most crucial.
Of course for some people punishment doesn’t work in preventing their crimes at all, that is precisely why we have multiple method – someone unmotivated by punishment might be motivated by having better welfare, for example.
“the aim in war is not to die for your country, but to make the enemy soldier die for his.”
Technically, the aim of a war is to persuade the enemy through force. In most wars surrender is acceptable, and sometimes preferred. Killing is only a second resort if they do not surrender (or if your doctrine specific calls for it).
“The reason punishment somewhat works as a deterrent is because depending on the person, there is a chance it can influence that person, and in some cases the influence of the deterrent might just hit the tipping point causing a person who would have committed a crime to not do it, and that is the most crucial.”
So then despite having no control over his/her actions that person is exercising control over his/her actions by choosing to commit them or not. I don’t see how that isn’t a contradiction.
Think of the relationship between
factors, people and decisions
as input, calculator and output.
When a person makes a decision, he is converting the input into output. But thing is, he has no initial control over what the input is, nor how he calculates.
It’s like with a calculator – you press the keys 5 x 5, and the calculator chooses to output 25. Does that mean the calculator has control? Hell no. The calculator didn’t decide to become a number crunching machine, WE built it that way.
Similarly, nobody has a choice over how they choose, their initial reasoning process is determined by their birth conditions, and everything that follows is just a natural consequence of the initial conditions.
So when you say “that person is exercising control over his/her actions by choosing to commit them or not.” What you are ignoring is, said person has no control over how he exercises control in the first place.
For example, I have no control over me typing this, because I have no control over my fondness for debate, because I have no control over being predisposed to like arguments (specifically winning them), because I have no control over my brain chemistry and growing conditions, because I had no control over the conditions to which I was born.
Even if I wanted to control myself to suddenly stop typing, it would still be because of a reason I have no control over. All it takes for every choice I make to not be a true free willed choice is for the initial condition to not be my choice.
It’s not really a contradiction unless a person cannot control ANY action on ANY possible deterring consideration. It may still be possible to deter someone from doing a wrong even in a person has little sense of the importance of selecting the “right” behaviour, if that person still does not wish to risk a probable punishment. Society is happy enough just to deter a wrong, it doesn’t really care if the wrong action was not deterred for a specific “right or wrong” kind of reason.
I would advise you to consider the implications of the Hawk/Dove Game in Evolutionary Game Theory, in particular in how it applies to “mixed strategies” (where a player can “choose” to act in one of two ways). The point of ESS (percent violent action) is V/C (where V is payoff and C the deterring cost) – we find there will be less violence in the population if the cost (punishment) is increased. Punishment used as a deterrence, as a first order effect, is society merely playing game theory to control behaviour in populations so as to achieve a “better” ESS.
Professor CC. Strangely enough, your posting today is pretty much what I was planning to post yesterday, in response to the “Jihadi John” post. In my more vengeful fantasies, what I imagine is a future where he is sentenced to be beheaded and for the rest of his life taken out at random intervals for the sentence to be carried out, only for it to be withheld, so that he can experience over and over again the terror that his victims must have experienced.
However, what you wrote today about the deterministic nature of all human behaviour applies to this particular individual as well. We can lock him up or we can kill him, but I guess that he is no more responsible for his actions than Ray Youth or indeed any of us in our peccadilloes, be they venal or cardinal. I also suspect that after a time he might come to regret them, as the fever of groupthink, group action and group exaltation wear off. Or that they might recede into a kind of dream, something that took place in another life.
Believing our brains are basically deterministic machines in no way eliminates the concept of punishment. Our neural system (as is the system of most animals) is a learning device, a mechanism that enables experiences to modify future behavior.
You don’t need to accept dualism for that conclusion, a completely deterministic computer program can learn from good/bad results and actually improve its performance. We work the same way. And if our brain is so malfunctioning as not to learn (even a psychopath can often learn to stay out of trouble) then that could be one of the cases where restraint is necessary.
People go on about the lack of mental health care, but in truth, it’s very different from medical care where diseases can be identified, treated, and frequently cured. In that case, supplying enough resources makes a big difference. Mental health treatment is pretty vague. You rarely, if ever, have cures. Some people respond, some get better for a while, many regress. There is little likelihood of any clear outcome, unlike physical illness. There is little evidence that simply spending will really change anything.
You are right.
However, assuming that being held in prison is harm, then it doesn’t sound right doing this to a person who cannot bear moral responsibility just to stop OTHERS from doing this or to defend others.
If that was right, you could do this to people who committed no crime at all.
well why would you not punish people who had committed no crime – if that’s what you were going to do? OTOH you might exercise judgment and choice and abstain from punishing innocent people because you chose not to.
But why abstain from punishing people, if you are ready to punish people who are not responsible for their actions? If your answer is that it serves [insert whatever purpose here], then why do this only to people who committed crimes? At least in principle, it can serve the same purpose to arrest them in advance (and even makes more sense, because you do this before they cause any harm).
The very use of the term “innocent people” implies moral judgement. This is a completely different justification for punishment from the one jay suggested (and to which I replied). Is a person who does something he cannot abstain from doing or is unable to understand the wrongfulness of the conduct not innocent?
But if desert is not a legitimate consideration, then what’s wrong with punishing the undeserving? From a strictly utilitarian perspective (as in not allowing any non-utilitarian consideration) this may sometimes be the right thing to do.
Your approach to this whole matter resembles that of a physicist modeling cattle as frictionless spheres.
Punishing the undeserving would quickly rip a society apart for reasons that should be instantly obvious. Indeed, punishing the undeserving, in most settings, is termed either criminal behavior or tyranny, depending on who’s doing the punishing.
b&
because ripping society apart is obviously a “non-utilitarian consideration”, duh. don’t you know anything?
/sarcasm
The idea of having a jury to decide the outcome of trials seems more than a little strange. Why would you take the opinion of random people who have no legal training, no forensic training and no psychological training and use that to make complicated choices? In South Africa there are no juries and everything is decided by the presiding judge. That of course comes with its own issues but at least he’s trained and experienced and hopefully knows what he’s doing.