The insanity defense: is it sane? Thoughts from the Leopold and Loeb case.

I’m reading the book below, which I found in a free book box, about the famous Leopold and Loeb murders of 1924.  The murders took place in Hyde Park/Kenwood, just a few blocks from where I sit. Nathan Leopold (left on the cover below) and Richard Loeb, once University of Chicago students, 19 and 18 respectively, decided to commit the perfect crime—a murder. There was no obvious reason for it except for for their hubris, especially Leopold’s, for he was a fan of Nietzsche and thought he was exempt from ordinary moral strictures. That gave rise to the book’s title. (Click on the screenshot to go to the Amazon site, and I do recommend the book as a historical page-turner.) They planned the murder for six months, confident that they could kill someone (they planned to abduct a random child from a nearby school) and never get caught.

In May of that year, the pair abducted and brutally murdered 14 year old Bobby Franks, Leopold’s second cousin. They drove his body to Indiana and sequestered it in a railroad culvert. The pair then sent a ransom note to Franks’s family, though the child was already dead.  They probably would have pulled off the crime, too, except that Leopold dropped his glasses near the body, and they had a special frame that had been sold to only three people in Chicago. The cops quickly traced the glasses and zeroed in on the pair, who promptly confessed everything in great detail. And they confessed without ever having talked to a lawyer, which of course is a serious mistake.

Leopold and Loeb’s families were wealthy, and engaged three lawyers to defend them, including Clarence Darrow, the most famous lawyer in America. (The next year he was the major defense attorney in the Scopes “Monkey Trial”.) Darrow, who also lived near me in Hyde Park, is a hero of mine: dedicated to fighting for the underdog, fiercely smart and eloquent, and an outspoken determinist and atheist.

Left to right: Loeb, Darrow, and Leopold. Source.

The boys changed their plea from “not guilty” to “guilty”, therefore giving up a jury trial as well as the possibility of a verdict of “not guilty by reason of insanity”. The only courtroom proceedings, then, were the lawyers’ arguments before the judge to determine what sentence the boys got (hanging, life without parole, or 14 years or more in prison).

Even Darrow admitted that the boys should be in jail until they died, but argued fiercely before the judge that the boys had no choice but to commit the crime—they were conditioned by their genes and environment to murder Bobby Franks. Darrow considered this mitigation, and was arguing for a prison sentence rather than hanging. Much of the book is devoted to the testimony of neurologists and psychologists who argued whether or not the boys were mentally ill, even though they couldn’t plead insanity. Darrow argued that both had mental disorders, and these played a major role in the crime.

In his summation and plea that the judge impose prison rather than the noose, Darrow made a famous twelve-hour argument, some of which you can read here. It was heavily deterministic, to wit:

This terrible crime was inherent in his organism, and it came from some ancestor … Is any blame attached because somebody took Nietzsche’s philosophy seriously and fashioned his life upon it? … It is hardly fair to hang a 19-year-old boy for the philosophy that was taught him at the university.

. . . Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way. Because somewhere in the infinite processes that go to the making up of the boy or the man something slipped, and those unfortunate lads sit here hated, despised, outcasts, with the community shouting for their blood. Mr. Savage, with the immaturity of youth and inexperience, says that if we hang them there will be no more killing. This world has been one long slaughterhouse from the beginning until today, and killing goes on and on and on, and will forever. Why not read something, why not study something, why not think instead of blindly shouting for death?

Darrow won. To everyone’s surprise, the judge gave them both life sentences. In 1936, Loeb was murdered in prison with a razor by a fellow inmate who claimed that Loeb made homosexual advances (Leopold and Loeb had a homosexual relationship). Leopold was actually paroled in 1958, moved to Puerto Rico, and died in 1971 at the age of 66.

I’ve digressed, but the story is a fascinating one, seen at the time as the crime of the century, with worldwide interest and publicity. Thousands of onlookers tried to rush the Chicago courtroom to hear Darrow’s summation, and finally had to be beaten back by the police.

When reading the book, I discovered that the standard for “insanity” at the time, which if proven by the defense would get you a “not guilty by reason of insanity” verdict (and likely a shortish stint in an asylum) was that the defendant did not understand that his conduct was criminal. That is, he didn’t know the difference between right and wrong (in the law).

That is in fact still the law in Illinois: here’s from the criminal code of our state in 2012:

Darrow argued that although Leopold and Loeb were not “insane” by these standards (he knew that such a plea wouldn’t fly), they were nevertheless suffering from mental illness, and it is on this issue that his speech centered.

While thinking it over, I realized, as I’ve said here before, that understanding that your crime was against the law is a lousy criterion for “insanity” mitigation in these cases. That’s because, as a determinist, I think that to some extent everyone who commits a crime is “insane” in the sense that they could not help themselves. As for Illinois’s insanity defense,  there may be those, including some serial killers, who know that their deeds are criminal and illegal, but are under such delusions or compulsions that they cannot help themselves, even though they know about conventional and legal morality.

Is “a knowledge of criminality”, then, to be the line that divides a gentler, more rehabilitative punishment from one that throws you into jail with other criminals, a dreadful fate if you’ve committed a capital offense? I can’t see why.  Why is “mental illness that blinds you to criminality” so different from “mental illness that compels you to do murder, even though you know it’s wrong?”  In fact, as a determinist, I don’t think that the criminal, at the moment of the crime (and oftentimes before, as with Leopold and Loeb) could have chosen to behave differently. Regardless of your views on punishment, if you agree with me—and I think all science-minded people must)—then you have to take determinism into account when weighing punishments.

My own view, which I’ve expounded here over and over again, is that even “hard” determinism mandates punishment for three reasons: to keep a dangerous person out of society (sequestration), to rehabilitate them if possible (so that sequestration can end), and to deter others (deterrence). But none of this justifies any punishment, like the prosecutor in the Leopold/Loeb case argued repeatedly, based on the fact that the criminal made the wrong choice. (The State’s Attorney repeatedly argued for the death penalty because Leopold and Loeb, not being insane, could have realized the criminality of their act and refrained from it.)

And although both Darrow and I are determinists, he went even further than I, arguing that prisons were superfluous. But perhaps we do agree on this: “prison” shouldn’t be an exercise in horror, but a removal from society (which is punishment itself and a deterrent), combined with whatever therapy necessary to ensure that the criminal can be returned to society. If there is no such therapy, then sequestration for life is mandated. In Norway, you’re examined for rehabilitation every five years, and if you’re judged un-rehabilitated, you stay in jail for another five years. But Norwegian prisons are far less brutal than American ones.

In other words, I don’t like the insanity defense, which offers true rehabilitation only to those deemed “insane”.  My view of criminal trials is that there should be two phases:

A. Was the criminal “responsible” for the deed? That is, did he do the act, period? That can be decided by a jury.

B. What is the best way to treat a convicted criminal in light of the three rationales for punishment given above? What sequestration is an appropriate deterrent? (That is something that can be decided empirically.) Is there a form or rehabilitation that will allow the criminal to return to society and pose no more danger than that of an ordinary citizen? If there is, that therapy should be given. The sentence, then, should be imposed not by judges or juries, but by a panel of experts, legal, medical and psychiatric.

I know that this mandates an extensive reform of the American penal system, and will be costly and will involve trial and error for a long time to come. And many people who are libertarian free-willers, and who think that criminals could have decided otherwise, will oppose reforms that take determinism into account.  But I can’t see any good argument for keeping the present system, which is cruel, retributive, and yields a high rate of recidivism.

_________

CODA:

Here are Leopold and Loeb’s mugshots taken when they entered prison (Leopold is at the top

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85 thoughts on “The insanity defense: is it sane? Thoughts from the Leopold and Loeb case.

  1. “The pair then sent a random note to Franks’s family, though the child was already dead. ” Presumably that should be “ransom note” .

  2. The insanity/disability defense does
    usually not imply additional restrictions on the freedom of the accused (e.g. longer mandatory confinement, not necessarily in a prison). It is a form of clemency.

    This is probably a major barrier towards considering determinism in the law (which would completely change our system, as you point out). Another is that any biological informed explanations of crime (e.g. those that take heredity into account) are considered Nazi-inspired evil.

    1. I think it works just fine with determinism. The concept is: the individual’s brain was not functioning normally. If the judge, jury, etc. find this to be the case, and have good reason to think the individual’s brain is functioning normally now and will continue to do so in the future, then the whole “removal for danger” reason for incarceration goes out the window. Moreover, if rehabilitation in this case is more about maintaining a drug regimen, then it makes no sense to put that person in jail. Just make sure they take their meds on the legally prescribed schedule, and release them.

      Of course, this interpretation of “insanity” doesn’t mean we have to believe the defendant. We could think defendant’s brain was functioning normally for them (i.e. the way it functions for them a month ago, and a month hence) – in which case, no insanity defense. Or we could think that if it wasn’t functioning normally then, it may still not be functioning normally now, therefore the person is still a danger worthy of incarceration.

      The goal is to incarcerate when it makes sense to do so. Doing something bad ‘while insane’ is sort of like doing something bad while unwillingly drugged, only in this case it’s your own brain providing the wrong signaling, not a drug. So if the brain can be fixed, fix it and release. If it can’t (or you suspect the plea is a lie), then that person remains a danger, may repeat their bad behavior in the future, etc. and incarceration makes more sense.

    2. The insanity/disability defense does usually not imply additional restrictions on the freedom of the accused (e.g. longer mandatory confinement, not necessarily in a prison). It is a form of clemency.

      I’m not sure what you mean by this. In the US these matters vary by jurisdiction — meaning 51 different systems (the 50 states, plus federal). In most jurisdictions, if a defendant is found “not guilty by reason of insanity,” the judge then conducts a post-verdict hearing to determine if the defendant poses a threat. If so, the defendant is subject to involuntarily civil commitment to a suitable mental institution. A defendant so committed is then brought back before the judge for periodic review (say, every six months) or if the director of the mental facility certifies that the defendant no longer poses a threat, so that the court can hold a hearing to determine whether the defendant should be released and, if so, under what conditions.

  3. Determinism aside, are some actions so “bad” that the perpetrator of them must be “mad” to do them, regardless of motive?

    1. I would doubt it. As Sir Terry Pratchett pointed out in “Small Gods,” ““There are hardly any excesses of the most crazed psychopath that cannot easily be duplicated by a normal kindly family man who just comes in to work every day and has a job to do.”

  4. Inspired the 1929 play “Rope” and subsequent 1948 Alfred Hitchcock film based on that play.

      1. An interesting film, especially for its very long shots. James Stewart’s character (kind of) personifies the academic who inspired the perpetrators’ Nietzsche-based attitudes.

        1. Yes, the film is shot as if it were one continuous shot playing out in real time. Hitchcock masks the cuts in clever ways like someone’s back filling the screen. The window scenes overlooking the city slowly darken and the building lights come on. An interesting film experiment that was considered a failure, even by Hitchcock himself.

    1. Also the 1959 film Compulsion, with Orson Welles in the defense lawyer role based on Clarence Darrow.

  5. My degree was in law, though I never practiced formally as a lawyer. Criminal law was a compulsory first year subject, with the defence of insanity under the M’Naghten (McNaughten) rules (UK) a very important element in learning about murder trials. I always felt for intuitive reasons that the whole approach was wrong. That somebody committing a murder is always in some frame of mind that is unlikely ever to be ‘normal’, and that allowing them to contrive their state of mind into a state that fits a set of rules that are questionable to begin with turned the process into a sort of bizarre game. Understanding something of determinism makes me even more doubtful about the whole process and whether any benefit attaches to the concept of insanity pleas.

    My view is, and always has been, that juries should be required to do no more than decide as to guilt on the basis of whether the defendant actually committed the offence. Nothing more. I’d previously considered that a specialist judge might deal with the aspect of the state of mind of the defendant but perhaps a panel might be a better idea.

    1. Your reasoning seems correct to me. A jury should only determine if the person did the crime. Determining the sanity or insanity is simply beyond the average person’s ability and it only becomes opinion. I was on a jury where the guy was on trial for murder/rape. Because the sentence was already determined if he was guilty, it made the work of the jury much easier. We did not have to make choices about intent or how many years the person should get. All we had to do was determine if both things occurred – the rape and the murder. In our case, we said he was guilty of both. Therefore, the sentence, life without parole was automatic.

    2. Eric & Geoff – Can you really say there is such a thing as ‘normal’? Is normal just what every person thinks they are? But does my normal equate with yours? I doubt that.

      As Terry Pratchett wrote, there is no justice, just us…

      1. I don’t think we have to come up with a bright-line objective concept of normal to use a subjective one. The issue is whether the person can be expected to behave similarly in the future to the way they behaved when committing the crime. If we have reason to credibly believe that their brain function was temporarily “off spec”, then that would probably be a bad assumption. If we can figure out why it was off spec and make sure it doesn’t go off spec again, so much the better. Release that person or give them a minimal, rehabilitative-focused treatment. OTOH, if we have no credible reason to believe this was ‘off spec’ behavior, or if we think the reason for them going ‘off spec’ is so mundane that something similar could easily happen again, then that speaks less to insanity and more to criminality (or, at least, lack of the self-control needed to be part of society).

        1. It occurs to me that these two were immature – the brain only matures in the early 20s. That has an effect on self-control… what do you think?

          1. Their brains were immature. However the long planning period indicates (at least, to me), that the killing was no ‘moment of insanity’. So (…with the benefit of hindsight…) I think Leopold’s fate seems reasonable: incarcerate for a period of years sufficient to be confident he’s changed, then release.

        2. I agree – and note that the Illinois law puts the burden of proof on the defense to prove insanity. So any wiggle-room in the evidence for/against “insanity” works against the defendant (as insanity is legally defined – not necessarily the same as the ordinary meaning of the word).

      2. Dom, I hoped that by enclosing ‘normal’ in quote marks I was implying that there is probably no ‘normal’. For me it’s why the test for insanity makes little sense.

    3. My mom would agree with you – she thinks anyone who would do such horrible things must be insane.

      I am inclined to disagree, however. I think a “normal” functioning human brain can plot and carry out murder. I think if we consider the variation in murder rate both historically and culturally – and it varies by two or more orders of magnitude across different societies! – indicates the current low rate is down to social factors, not biological ones. Moreover, looking at our closest animal relatives, other omnivores, etc., I think it would be a very curious and unusual case if homo sapiens had brains unequipped or unable to think of killing as a viable plan to overcome some adversity.

    4. In most jurisdictions, judges alone determine a convicted defendant’s sentence. The exception is (in states that still employ it) death penalty cases, where the jury must determine whether the statutory factors that would warrant imposition of capital punishment exist.

      In 2000, in Apprendi v. United States, SCOTUS came within one vote of deciding that ALL factors that go into determining the length of an offender’s sentence must be determined by the jury rather than the judge.

      1. Glad to know they missed it by one vote. Why they think the jury should decide that is beyond me. In 2001 or 2, I can’t remember exactly, the jury I was on said the guy was guilty of rape and murder. The sentence in California was automatic – life without parole. That seems reasonable to me.

        1. The opposing argument is that leaving sentencing entirely to the judge essentially guts the Sixth Amendment right to trial by jury. A jury makes a finding regarding guilt, by proof beyond a reasonable doubt based on evidence introduced according to strict rule governing admissibility.

          The crime the defendant has been found guilty of usually carries a broad range of potential punishments, say zero to 20 years. The judge then acting alone — in many jurisdictions based solely on findings by a preponderance of the evidence, including evidence that may not have been included in the trial record — imposes a sentence that may result in either probation, or five or ten or even twenty years’ imprisonment for the defendant.

          In other words, despite the constitutional right to trial by jury, the most important findings affecting the defendant’s life are made not by the jury, but by a judge acting alone, according to a lesser standard.

          1. What’s scary about a judge acting alone, is the judge might be wholly incompetent or elected and under great public pressure. A panel would spread the chance of error, add a level of expertise, and lessen the risk. But, moving to a panel of experts would be very difficult given our history. Remember “death panels”?

            1. A jury is just as likely to come up with a strange outcome. Recall OJ trail. I see nothing wrong with having trained people, ie. Judges deciding sentencing verse people on the street. Also see nothing wrong in some cases with mandatory sentences. Such as rape/murder cases. If the person is guilty of rape and murder, life without parole sees just fine to me.

              If someone is guilty of DUI there should be a penalty. Most of them are going to repeat anyway, especially if you let them off. The fact that they may not have done otherwise should not lower the sentence on this crime.

            2. I think there are hazards to trial by a jury of one’s peers and by punishment determined only by the judge. Having recently seen a John Oliver show about jury selection, it seems easy to rig. And one’s peers can be a from very broad range of cultures, experiences and education. In the past, I have read about judges that were perhaps illegally discriminatory judges who probably shouldn’t be judges. More recently, we’ve had 200=/- Republican selected or endorsed judges added to judgeship roles who are apparently expected to be judges until age 70 if they don’t die before. Judges are not without bias.

            3. I agree, a panel of experts seems like a better choice than either a judge acting alone or a jury of random citizens.

  6. My view of criminal trials is that there should be two phases:

    A. Was the criminal “responsible” for the deed? That is, did he do the act, period? That can be decided by a jury.

    B. What is the best way to treat a convicted criminal in light of the three rationales for punishment given above?

    I’m in agreement with hard determinism and that an acceptance of it would require a complete revamping of our criminal justice system.

    But determining whether a defendant is “responsible” for a criminal deed requires something more than the mere inquiry “did he do the act, period?” — requires some inquiry, that is, into the defendant’s mental state at the time the act was committed.

    Take, for example, a motorist who hits and kills a child. Certainly, someone who intentionally runs down the child of an enemy is “responsible” for the child’s death in a way that a driver exercising all due prudence who hits and kills a child who darts out from between parked cars is not. (The latter, I think most would agree, shouldn’t be held criminally liable at all.) And both are “responsible” for the child’s death in a different sense from someone who takes his eye of the road for a moment to send a text message or from someone under the influence speeding down a residential street at twice the speed limit.

    Point being, even under a system based on pure determinism, it seems impossible as a practical matter to eliminate the defendant’s mental state at the time of the act from the inquiry into culpability.

    1. One key question is “if we let this person go, are they likely kill again?”

      Cautious driver: determinism or no, no. It would require a repeat of the coincidental factors. So determinism or no, outcome seems IMO the same; release.

      Texting/drunk driver: determinism or no, likely if they continue their bad habit since that increases the likelihood of the factors coming together. Unlikely if bad habit is fixed. So determinism or no, outcome seems IMO the same; fix the bad habit and incarcerate if needed to deter others doing same bad habit.

      Intentional driver: determinism or no, yes. Outcome: remove from society to prevent future occurrences, at least until such time as you have empirical evidence behavior has changed.

      So…how much does determinism really matter?

      1. It certainly matters to the cautious driver who must carry the burden and disabilities imposed by a felony conviction for the rest of his or her life, even if he or she is released without incarceration.

    2. You misunderstood what I mean by “responsible”. I meant only “did the deed that is deemed a crime.” If not, the proceedings end. If so, then the state of mind is judged by experts.

      1. I understood “did the deed that is deemed a crime[,]” under the four scenarios I proposed, to mean “ran over and killed a child while driving a car.”

        Look, I accept hard determinism. That is not a position I come to with alacrity; it is, I think, counter-intuitive to our everyday experience. Nevertheless, I accept this position because I do not believe there are any exemptions from the laws of physics (be they classical, or be they the probabilistic laws of quantum mechanics) that admit of anything resembling contra-causal free will.

        And under your conception of hard determinism, as I understand it (and as I tend to agree with it), there is no difference in “moral responsibility” — which is to say no difference in “choice” — between a motorist who runs down a child and a motorist who hits the child accidentally, despite exercising due care.

        I understand that my imagination in this regard may be atrophied by 30 years of practicing in a criminal justice system based on the “blameworthiness” of a defendant’s mental state at the time “the deed that is deemed a crime” was committed.

        But I do not find imagining an alternative system based on hard determinism an easy task.

      2. The part I have trouble with is “deemed a crime”. I grant for the sake of argument that there might be a discoverable fact of the matter about whether harm was caused, and if so, whose actions caused it. But deeming that a crime seems to call for a moral judgment, and I don’t see how that works in a world lacking any concept of moral responsibility. That lack seems to erase the distinction between crime and mere happenstance.

  7. Interesting…
    There is another reason to imprison a person – for their own protection. Look at poor Frank in the earlier post – murdered by a lynch party in a sophisticated premeditated manner. Taken from prison. That no one pursued the guilty is terrible. But were they justified, as they would not doubt have claimed that they were carrying out a sentence as the state had failed their view of ‘justice’. Were they just doing what was determined by upbringing & inheritance?

    Stupid people have no interest in evidence, only in seeing their views upheld.

  8. If incarceration was more humane then insanity pleas would have less functionality. It can be argued every criminal has some mental health issues. The engineering control we can apply, as a society, to this problem is to work on understanding which mental health problems can be fixed and which are unlikely to be fixed. But none of that is meaningful if prison remains a dark, miserable, violent place.

    Rehabilitation, in America, is akin to Sysyphus rolling his rock forever up a hill. It doesn’t have to be like that.

    1. Apparently, by law (according to a defense attorney in the public defender’s office here) in Florida, the purpose of prison is explicitly NOT rehabilitative but is punitive. Welcome to Florida – come on vacation, stay on probation.

    2. Why would recidivism not be expected? Personality traits are fairly stable.

      I also do not believe that mental health in the context of criminal justice is anything more than a popular catchphrase. For most people, we do not withhold it because it does not exist, i.e. their problems are not treatable (exempting lobotomies and the like).

  9. Determinism or not, it is human nature to consider the motive. Two privileged young men kill a young innocent solely for the thrill of it. Darrow was wise to avoid a jury trial.

    1. “Motive” is not an element of a criminal offense; it can, however, constitute circumstantial evidence that the defendant was the offender.

      And under some statutory sentencing schemes, it is an aggravating factor. Under the federal sentencing guidelines, for example, offenders who sought “pecuniary gain” from their crimes are sentenced more harshly. And in jurisdictions that employ capital punishment, certain types of motives can constitute one of the statutory aggravating factors warranting imposition of the death penalty. Someone who commits a murder for pecuniary gain — for example, a hit man or a beneficiary seeking to collect on an insurance policy — may be subject to the death penalty, as may someone who commits murder in an effort to silence a witness or otherwise to obstruct a criminal investigation.

      1. I see. So it sounds like deterrence. You are trying to deter murders precipitated by certain types of motives.

        There is, however, the cold-bloodedness factor (premeditation?) Hot-blooded murderers are often sentenced more lightly, I think. Leopold and Loeb were as cold-blooded as it gets.

        1. Yes, that a murder was committed in a “cold and calculated” manner (which is to say, with more than minimal premeditation) is a statutory aggravating factor in most capital murder sentencing schemes.

          But I don’t believe these factors themselves are intended so much as a deterrent to others as they are meant to impose maximum punishment based on the offender’s perceived “blameworthiness.”

      2. This is wrong, motive is absolutely an element of many crimes. It also frequently goes to mens rea, which is an essential element of ALL crimes. Consider fraud: the fraudster must intend for the person they are attempting to defraud to rely on their fraudulent statement, so that the fraudster can extract some gain from them. If I go around, like I’m Johnny Rotten bringing anarchy to the UK, telling people the wrong time just because I like to screw with people, that’s not fraud, it’s just being a lying a******.

        1. No, you’re confusing circumstantial evidence of mens rea with the actual mens rea ELEMENT of a criminal offense.

          Fraud offenses, for example, require the a mens rea of an intent to deprive another permanently of money or property by means of material misrepresentations of fact.

          That the fraudster needed the money, say, to pay off a gambling debt to the mob would be a motive, circumstantially establishing that the defendant had means rea of an intent to defraud. It would not constitute the actual mens rea element itself.

  10. ‘…reforms that take determinism into account.”

    I still get stuck on the idea that, even as I write this comment, it was determined that I should write it.

    1. “I still get stuck on the idea that, even as I write this comment, it was determined that I should write it.”

      For a couple of minutes I contemplated whether to answer you. I wondered how long I should contemplate. Then I decided to answer you. Otherwise, did I never answer you, you’d never know that I was so contemplating.

      Contemplating the cold-bloodedness of Leopold and Loeb, I’m reminded of lyrics from Johnny Cash’s “Folsom Prison Blues”:

      “I shot a man in Reno, just to watch him die,
      When I hear that whistle blowin’, I hang my head and cry.”

      In his defense Darrow referenced L&L’s environment as a possible cause. As their families were wealthy, I wonder if part of their problem was what nowadays is termed “Affluenza.”

      (Also, seems one should steer clear of Nietzsche, although apparently the Greater Atlanta Area noble souls who lynched Leo Frank did not require Nietzschean inspiration in order to justify to themselves their breath-taking entitlement to be exempt from the law, let alone morality.)

  11. My own view, which I’ve expounded here over and over again, is that even “hard” determinism mandates punishment for three reasons: to keep a dangerous person out of society (sequestration), to rehabilitate them if possible (so that sequestration can end), and to deter others (deterrence). But none of this justifies any punishment […] based on the fact that the criminal made the wrong choice.

    I agree that these are the three principal goals of a justice system, but I’m not clear on why you think punishment is mandated in all three cases. Sequestration needn’t entail the deliberate infliction of suffering, and I imagine that rehabilitation is best accomplished without it.

    Deterrence may indeed require some form of suffering. But whose suffering? On your view of responsibility, a perpetrator’s children bear precisely the same degree of moral responsibility for the crime as the perp himself, namely zero. So which of these equally responsible parties should we punish in order to gain the most deterrent leverage?

    Gangsters know the answer to that: if you want to intimidate a witness, threaten their children, and be prepared to follow through. But I doubt that even the most hardened determinist would sign onto that as a reasonable and just way to order society. So even under determinism, there must be some sense in which punishing guilty parties is justified in a way that punishing innocents is not, over and above its purely instrumental value as a deterrent.

    1. Exactly. Punishment has a backward-looking rationale – who is actually responsible – as well as a forward-looking rationale – how can we stop this kind of thing in the future.

    2. Historically, a lot of societies have used collective punishments. They are a very effective deterrent, especially when the rule of law through courts and policing would otherwise be absent and the criminal has a good chance of not being identified and caught.

      Our justice system struggles enormously when criminal family clans can threaten their victims with collective punishments without them having a chance to do the same.

      1. The notion of collective punishment is inimical to American standards of criminal justice and, may, per international law, constitute a war crime — as, for example, when Donald Trump suggested during the 2016 presidential campaign that the US punish terrorists by killing their family members.

  12. I’ve long thought that Leopold’s life after pardon was a good argument against the death penalty. He went on to do some good in Puerto Rico and he was an ornithologist. From Wikipedia: “Leopold and several other ornithologists identified the Kirtland’s warbler, and made astute observations about the parasitic nesting behavior of brown-headed cowbirds which threatened the warblers.[8]”

    1. Maybe Leopold’s life after parole is evidence
      that life in an American prison, even if harder than life in Norwegian prisons, can lead to rehabilitation. How many Norwegian parolees have gone into ornithology?

  13. C.S. Lewis’s “The Humanitarian Thoery of Punishment”, is about this very subject and the source of this famous quote –

    “Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. etc .”

    The potential “busybodies” and potential “tyrants” are the humanitarians.

    *I found it to be a series of factually unsupported but well crafted sentences which added up to an incoherent rant.

    1. “Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. etc .”

      I wonder if Lewis thought of his university (and himself) as “omnipotent moral busybodies.” Nowadays in the Age of Wokeness I perceive that universities are both that and robber barons, what with the rate of tuition increases.

  14. If I understand correctly, “insanity” is now a legal term rather than a medical term. Medically, an individual would be described as having a particular mental disorder, such as schizophrenia or PTSD. Presumably, a mental disorder could contribute to an insanity defense, but maybe it is not needed? What is needed exactly, since a mental health expert witness would presumably describe a disorder rather than pronouncing someone insane?

  15. I recall reading in my youth a novel “Compulsion” by Meyer Levin based on the Leopold/Loeb murder case. Entertaining book – I think there was a movie too? The case has always intrigued me.

  16. ” If there is a firm of rehabilitation ———– that therapy should be given “. I do wonder how far such an approach should be taken. Would it be permissible in any circumstances to apply chemical or other form of castration to a serial sex offender?

  17. I’ve read about Leopold and Loeb, but not a great deal. Whatever the cause of the murder they committed, determinism and/or some mental illness like their being sociopaths or psychopaths, it was unconscionable. Although one died in prison and one was released, they were lucky not to receive the death penalty.
    I don’t know what the percentage is of murderers, rapists, and other forms of injurers of humanity, but I have no problem with their being in prison for the safety of the populace unless and/or until they can be rehabilitated.

    However, some of our judicial systems have interesting quirks that have caused people to be incarcerated for marijuana usage (since the “War on Drugs”). Some states have a “three strikes and you’re out law”. Marijuana usage arrests and similar relatively minor infractions have filled up our prisons with people I think shouldn’t be there any more than drinkers of alcoholic beverages should be (except for DUIs, whether by marijuana or alcohol). It is my understanding that these punishments occur more often among black people. So, there is need to correct the inequities of our justice system in this and, probably, other regards.

    In addition, I abhor the Prison-Industrial Complex that has been around since 1979. I read on Wiki that from “…1980 through 1994,
    prison industry profits jumped substantially from $392 million to $1.31 billion.” Although it’s off topic, I heartily suggest that all who can, read the Wikipedia article on “Prison-industrial complex”. I find it interesting that prisons are lucrative business opportunities. You may find interesting the political figures referenced and what roles each played.

  18. There was an interesting case of a man who became a pedophile after getting a brain tumor. Just before sentencing he was taken to a hospital where the tumor was discovered. The tumor was removed and he was no longer a pedophile.

    Later he started to feel the urges again and discovered that the tumor had returned. After another operation, he returned to normal.

    https://www.independent.co.uk/life-style/health-and-families/features/a-40-year-old-developed-an-obsession-with-child-pornography-then-doctors-discovered-why-a6893756.html

    1. And the Texas tower shooter Charles Whitman, had a brain tumor that may—may—have caused him to kill 17 people, including his mother and wife. PCC would argue that a tumor-induced crime is no different than a crime where no tumor is present. Both are the result of deterministic brain disorders. He might be right, but it implies that all criminals have brain disorders, whether they can be established forensically or not. Their crimes prove it. Not sure about that.

      1. That’s the problem with applying determinism: It makes no meaningful distinction between events. Every event is equally causally necessary and inevitable from any prior point in time. So, this gives us no guidance as to how to treat cases where there is mental illness versus cases where it is a choice of a rational mind to profit at another’s expense. It is naive to presume that no rational person ever robs a convenience store simply because it is a quick source of money. What is required to correct the sane mind’s thinking is very different than what is required to correct a brain tumor. By applying determinism, we lose all meaningful distinctions between different events.

        1. I don’t think that follows at all, Marvin. Determinism does not require one to ignore facts relevant to behavior. The existence (or non-existence) of mental illness is relevant to helping decide how best to deal with a crime when it occurs. No determinist would agree with your assertion.

          1. Exactly. Determinism should not lead us to conclude that all brains that commit crimes are disordered. Actually, determinism itself leads to no meaningful conclusions at all. All of the utility of the notion of reliable cause and effect comes from knowing the specific causes of specific effects.

            Determinism itself provides us with only one fact: that every event is causally necessary from any prior point in time and inevitably must happen. But once we acknowledge that fact, there is nothing useful we can do with it.

            For example, it cannot help us to make any decision, because it will just tell us that whatever we decide will be inevitable. Not very helpful at all.

            1. Well, I’ll leave the general defense of determinism to others. I just have to object to statements like: “It makes no meaningful distinction between events.” It completely acknowledges that some events influence consequent ones more than others. No determinist would claim that the votes of the Electoral College following the 2016 election had no more effect on subsequent life in the US than what I had for breakfast on that day.

              1. You are speaking of specific causes of specific effects. These are always meaningful and useful facts.

                It is the single fact of universal causal inevitability that is useless. It is made irrelevant by its own ubiquity. It is like a constant that always appears on both sides of every equation, and can be subtracted from both sides without affecting the result.

                For example, if we try to use causal inevitability to excuse the thief who stole your wallet, it will also excuse the judge who cuts off his hand.

                So, it cannot be used to excuse one thing without excusing everything. Therefore, it cannot be used to excuse anything.

              2. Who argues for “the single fact of universal causal inevitability”? I’m not even sure I know what that is.

              3. Determinism asserts that every event is the reliable result of prior events, thus every event is causally necessary and inevitably must happen. Determinism is logically derived from the presumption of a world of perfectly reliable cause and effect.

                I suspect it is true and that everyone already takes it for granted. After all, everyone believes that things that happen must be caused by something, even if we don’t know what that cause is.

                The trouble is that many people view causal necessity as some kind of force that takes control of everything, such that we no longer have any control of our own.

                But determinism is neither an object nor a force. It is purely descriptive, and not causative.

                Only the actual objects and forces that make up the physical universe can be said to cause events to happen. And, guess what? We happen to be one of those actual objects that go around making things happen.

  19. I am still interested in commenting that I read every post every day and would be devastated if the post shut down.

  20. I would prefer a “guilty but mentally illl” verdict over “not guilty by reason of insanity.”

  21. A possible improvement over the Illinois law would be the policeman at the elbow test.

    The policeman at the elbow test is a test used by some courts to determine whether the defendant was insane when they committed a crime. It is a variant of the M’Naghten Rules that addresses the situation in which the defendant knew that what they were going to do was wrong, but had no ability to restrain themself from doing it. The test asks whether they would have done what they did even if a police officer were standing at their elbow, hence its name.

    This covers both the situation where the criminal doesn’t know something is illegal, as well as the one where the perpetrator can’t balance reasons against each other.

  22. I take exception to the idea that the threat of being sentenced to prison, or otherwise being punished in some fashion due to existing criminal statutes, is a deterrent. That is, if what one means by a deterrent, is to in fact “deter” others from committing similar offenses, or from breaking the law in the first place because a fellow citizen was sentenced in some fashion, particularly to prison.

    As an example, let’s look at the death penalty sentence. According to the Criminal Justice Project of the NAACP, there are 2,620 people on death row in the United States as of January 1, 2020. Why were these 2,620 individuals not deterred by the possibility of a sentence of death? The death sentence has clearly been given out to others, and enforced in some states throughout the country.

    Furthermore, I would argue that there are thousands of criminal acts completed everyday in this country that could, if the perpetrator gets caught, tried and sentenced, result in a lengthy period of incarceration due to the particular sentencing guidelines, given for a particular crime, within the jurisdiction where the crime was committed. Notwithstanding the aforementioned, numerous individuals continue to commit the same crime [within the same jurisdiction] as some of their fellow citizens who have previously received harsh sentences for that crime.

    According to the Prison Policy Initiative PPI), the American criminal justice system holds almost 2.3 million people in 1,833 state prisons, 110 federal prisons, 1,772 juvenile correctional facilities, 3,134 local jails, 218 immigration detention facilities, and 80 Indian Country jails as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. (Figures compiled by the PPI are from different sources between 2012 and 2020.) IMO, this begs the question, who is being deterred?

    The threat of being punished by criminal statutes deters the law-abiding citizens, not the criminal. And, who do we fear? It so easy to toss about the noble idea that a particular punishment acts as a “deterrence” to others not to commit crimes.

    I would argue that the criminal who considers the possible sentence [he/she] might receive for the crime they are about to commit—before they commit the crime—is so minuscule [if such a criminal even exists at all] as to be undetectable. Sentencing/punishment is for the purpose of satisfying our need for justice for the victim, and the criminal once caught and convicted. It has little or nothing—in reality—to do in the way of acting as a deterrent. That’s a myth bigger than the existence of God!

    1. I agree. Deterrence of others is not a valid objective of penalty, it is like punishing one person for the (prospective) crimes of another. If the penalty is sufficient to correct the offender, then that should also be sufficient to deter the potential offender who is still only thinking about committing a crime.

  23. I don’t think we can rule out the possibility of someone rationally choosing to commit a crime for his own benefit, thinking that we will not be caught. That seems to be the case with these two young men.

    It sounds like they spent a lot of time planning the crime. I would guess that their primary motive was to experience the power of killing someone and getting away with it.

    That is probably a rational thought process when you consider that many murderers are never caught.

    Having been caught by leaving his glasses at the crime scene, the next problem is what to do with them.

    People who think as they did are a threat to others until they change how they think about things. So, how do we change how they think about things?

    They are not insane. But their thinking is dangerously immoral. So, how does one go about changing them?

    If we blame their upbringing, then how do we bring them up a second time?

    If we blame their reading Nietzsche, then how do we accomplish unreading what they read?

    That is the practical problem of penalty.

  24. If the goal of a penalty is deterrence, then what limits that penalty? We would always be tempted to make the penalty harsher than is necessary to correct the offender.

    The correct philosophy of Justice would provide its own limit. Justice seeks to protect EVERYONE’S rights. Therefore, a “just penalty” would (a) repair the harm to the victim if possible, (b) correct the offender’s future behavior if corrigible, (c) protect society by securing the offender until his behavior is corrected, and (d) doing no more harm to the offender and his rights than is reasonably required to accomplish (a), (b), and (c).

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