There are four justifications for putting criminals in prison: keeping society safe from those who might transgress again (sequestration); using prisons or hospitals as a place to reform criminals so they’re no longer a danger when released (reformation); serving to keep others from committing crimes lest they face the same fate (deterrence); and simple revenge: punishing someone who transgresses because they made the wrong choice and deserves to be punished for that (retribution).
In the case of the death penalty or life in prison without parole—two possibilities that face James Holmes, who killed 12 and wounded 70 in a Colorado movie-theater shooting two years ago—only one of these reasons is justified: sequestration,which means no execution. The death penalty has been shown to have no deterrent effect; and retribution, at least for most of us, is not a rational motivation but an emotional reaction. If the jury decides to execute Holmes, reformation is off the table as well.
And, as I’ve mentioned before, two arguments against the death penalty are that imposing it is more costly and time-consuming than imposing life in prison without parole (the appeals in the US system last for years, involving masses of lawyers), and that mistakes are made more often than we realize when executing criminals. If an innocent person is put to death, there’s no way to undo the damage.
For someone like Holmes who commits such a heinous crime, and faces the possibilities of either life in prison without parole or execution (the jury will decide this week), the only reason to choose execution over other penalties is retribution: the idea that someone who chooses to do something so evil deserves to be killed.
But the U.S. gives some murderers a break: if the judge or jury doesn’t think you had a choice, you get sent to a hospital instead of a prison (and remember, those convicted of murder face horrible circumstances in US jails). The lack of choice is determined by whether the court deems a convicted defendant legally insane, and thus presumably unable to have controlled his or her actions. But often that’s not enough. In the case of Holmes, who’s been diagnosed by the examining psychiatrists as schizophrenic, a determination of “legal insanity” (it varies state by state) requires not just extreme mental illness, but “incapability of distinguishing right from wrong.”
Well, it’s possible to have a severe mental illness and be driven by that illness to commit crimes, even if you do know that society considers them “wrong”—or even if the criminal considers them “wrong”. And so, as psychiatrist Dr. Sally Satel argues in the Washington Post, Holmes should not be executed because he is neither “genuinely criminally responsible” nor a “moral agent,” for, given his condition, he could not control his behavior:
Unfortunately, the insanity defense. . . makes little distinction between ordinary motives for murder — revenge, hatred, greed, or elimination of rivals — and motives that spring from twisted assumptions produced by mental illness. Yet how can anyone suffering from such assumptions be genuinely criminally responsible?
. . . After all, the basic requirement for blame is whether the perpetrator is a moral agent. And a defendant cannot properly be considered a moral agent if his acts were the products of cognitive (e.g., infancy, dementia, or mental derangement) or volitional (e.g., gun to the head) circumstances that were not under the defendant’s control.
. . . Indeed, the basic logic behind the insanity defense is that the law should not punish people who are mentally incapable of controlling their behavior.
Her solution?
In my view, the best solution is for states to broaden the definition of insanity to cover defendants whose crimes flowed directly from delusional thinking, extreme paranoia, or command hallucinations. Such defendants should be confined and treated in mental hospitals, not punished by the criminal justice system. To be clear, murderers would need to show a severe deficit in the ability to reason, not merely a record of mental illness. Depression, anxiety, post-traumatic stress disorder, or drug-induced paranoia, for example, should not be exculpatory.
The American Bar Association largely agrees:
A 2006 report from an American Bar Association panel sensibly proposed that defendants “should not be executed or sentenced to death if, at the time of the crime, they had a severe mental disease that significantly impaired their capacity to (a) appreciate the nature, consequences and wrongfulness of their conduct, (b) exercise rational judgment in relation to conduct, or (c) conform their conduct to the requirements of the law.”
And I agree with both of these solutions. But they don’t go nearly far enough.
If you’re a determinist, and feel that nobody has a real choice about how to behave at a given moment—that is, in a given circumstance at a given moment, nobody can behave other than as he did—then appreciation of the distinction between right and wrong is irrelevant in determining whether someone should be executed. It’s relevant in deciding how the criminal should be treated after conviction, but—given your genetic endowment and environmental influences—if your behavior was absolutely mandated by the configuration and interaction of your neurons, what justification is there for partly exculpating those whose behaviors were driven by mental illness while at the same time killing or imprisoning those whose behaviors were driven by inexorable mental processes?
What I’m saying is that, given determinism, there is no rationale for executing anyone. With respect to crime, mental illness is in principle no different from mental compulsion. (The deterrent effect of execution is not relevant, because there isn’t one.)
Of course we should treat criminals with a serious mental illness differently from those who aren’t as abnormal. Treatments should be tailored to the individual’s mentality, background, and health, as well as to the likelihood of recidivism. Someone who remains a danger to society because of intractable mental illness should be sequestered longer or permanently, exactly as someone who is a danger because of intractable sociopathy or murderous impulses, regardless of whether they know right from wrong.
But once a crime is done, the ultimate goal (beyond sequestration) should be reformation, for many criminals can become productive members of society, and it seems wrong to torture them after they’ve reached that point. If they can’t be reformed, keep them sequestered. (That, of course, will be a judgment call, but it’s one that can at least be studied empirically.)
I’ve previously written about how the prison system of Norway works. It’s a system that should be taken seriously by American criminologists. A report from Business Insider, which I discussed earlier, gives some details (Norway, like nearly all Western countries, does not execute criminals). Not only are Norway’s prisons far more comfortable and humane than in the U.S. (they’re like dormitories, through prisoners aren’t allowed to leave), but the sentencing is considerably different from methods used in America:
The maximum life sentence in Norway shows just how serious the country is about its unique approach. With few exceptions (for genocide and war crimes mostly), judges can only sentence criminals to a maximum of 21 years. At the end of the initial term, however, five-year increments can be added onto to the prisoner’s sentence every five years, indefinitely, if the system determines he or she isn’t rehabilitated.That’s why Norwegian extremist Anders Behring Breivik, who killed 77 people in a bombing and mass shooting, was only sentenced to 21 years. Most of the outrage and incredulity over that sentence, however, came from the US.
Overall, Norwegians, even some parents who lost children in the attack, seemed satisfied with the sentence, The New York Times reported. Still, Breivik’s sentence, as is, put him behind bars for less than 100 days for every life he took, as The Atlantic noted. On the other hand, if the system doesn’t determine Breivik “rehabilitated,” he could stay in prison forever.
That seems quite enlightened to me. Most important, though, is that it works: the rate of recidivism in Norway is considerably lower than in the U.S.
In Norway, fewer than 4,000 of the country’s 5 million people were behind bars as of August 2014.
That makes Norway’s incarceration rate just 75 per 100,000 people, compared to 707 people for every 100,000 people in the US.
On top of that, when criminals in Norway leave prison, they stay out. It has one of the lowest recidivism rates in the world at 20%. The US has one of the highest: 76.6% of prisoners are re-arrested within five years.
We should deep-six the “knowing right from wrong” criterion, as it has absolutely nothing to do with whether a person could have refrained from crimes already committed. What is important is understanding why somebody transgressed the norms of society, to figure out the best way to prevent that from happening again and, if possible, to render the criminal a law-abiding citizen.
In the end, I think it’s unproductive to worry, as does Satel, whether a criminal is “genuinely criminally responsible” or a “moral agent.” Those are nebulous and even philosophical categories that seems incapable of an objective resolution. We should worry about results, not semantics, and realize that while every criminal is responsible for his deed, in the sense that he did it, none of them had a choice about whether to do it. My hope is that this profound realization can render America’s prison system, and its results, more like Norway’s.
