September 5, 2016

The Punishment Shouldn't Fit the Crime

What I’m here to write about is why retribution should be completely eliminated as a goal of punishment. There are numerous goals and functions of punishment and different societies, organizations and even families use these goals often without the realization as to why the specific punishment is being used.

A famous rehabilitated bike thief, but probably due to financial sucess
At the family level deterrence stands out as the main outcome, as “You won’t take that bike again!” seems like the desired outcome for some Canadian teens. When the problem seems to arise from being around specific people or places parents may try, another goal of punishment, incapacitation. ‘Uh-Oh’, ‘You’re grounded!’ might be the sound of incapacitation in action, but if your being grounded for breaking something, or stealing something you might unfortunately also hear, “And you’re going to get your brother a new bike!” This may be true even if your brother's bike was a rusty old banana seater that left you feeling like you’d have rather spent a night in prison after a couple of kilometers. This new bike is an added level of deterrence to be sure, but it has a more pointed goal of restitution or paying someone back for the harm you have done them.  

If the problem keeps happening then parents can keep raising up the deterrence level through increasing the punishment for the undesired action, but at some point, if stiffening the consequences isn’t working punishment needs a different goal, rehabilitation. This is where the behavior is tried to be changed in more constructive and intensive ways. 

Those are 4 of the 5 goals of punishment, deterrence, incapacitation, restitution, and rehabilitation, but underlying and often answering how much or how long is retribution. If a bike was borrowed without asking the punishment should be greater than if a bike is stolen and not returned, or more generally small punishments for minor offenses and larger penalties for greater ones. Let the punishment fit the crime is the classic summation of retributive justice.

This leaves the five goals of punishment as:

Deterrence – The use of punishment as an example to keep people from committing a similar act.
Incapacitation – Removing the possibility of reoffending for a period of time.
Restitution – The restoration of what was lost.
Retribution – Punishments are to be proportional to the crime committed.
Rehabilitation – The changing of behavior patterns to attempt to stop recidivism.

This makes it so one could imagine punishment on a switchboard with five knobs corresponding with the five goals of punishment. Each society or punishment giver has these knobs set at different levels, as any decisions will begin to toggle the dials in different directions. Strict parents or states with strict laws unquestionably would have the deterrence, incapacitation and retribution dials turned up while in easier going places those three dials would be turned down. 

The point here is that while these dials can be adjusted in different ways, there are probably optimal settings for these dials in different situations, but more to the point indicated in the title, there is evidence that the retribution dial should be turned off completely if people could move beyond the primitive need for proportional justice.

This evidence comes from studies on the modern understanding of free will, which I like to call:

Two Unpopular and Often Ignored Facts About the Brain:

.1. Your brain makes decisions before your consciously aware of them
      2. Your brain lies to you

One: it has been known for quite a while at least since the experiments the late of Benjamin Libet, who pioneered studies on actions and when people become conscious of them. He had people hooked up with EEG electrodes and then asked them to do simple tasks and log the time when they made their choice. What Libet found was that through looking at the activity recorded on the EEG machine he could know what the person was going to do before the person themselves came to a conscious decision. This study was similarly repeated a few years ago by scientists at the Max Planck Institute and they found they could predict people’s behavior up to 7 seconds before theperson recorded conscious awareness. Meaning in the time it takes to become aware of some decisions a person could have been 7/8ths of the way through a bull ride. The implication here is that cognition is a process where the parts of the brain make decisions and then people become consciously aware of them, which creates problems for the idea of free will. Obviously, some decisions are made and acted upon in less of a span than 7 seconds, but the underlying principle is what is the important takeaway. 

Two: your brain lies to you. It creates post hoc rationalizations on the fly to justify the decisions that were made at the unconscious level. There are a few studies that stand out as more important than other studies and really create a foundational understanding, Zambrano's prison experiment and Milgrim’s work on obedience to authority, and Asch’s work on conformity. Those studies created a better understanding of the mind and explained some of the mystery of human action and Gazzaniga’s work with split brain patients should stand right along with them. Among the many things his work demonstrates is the post hoc rationalization that the brain performs without our knowledge.

The corpus callosum is the thin layer that connects the two halves of the brain, but as a last resort for people with epilepsy, this layer is cut, leaving the two halves of the brain separate. This is interesting as the different halves of the brain have different functions. 

Importantly speech is located in the left hemisphere of the brain and that can be exploited. A person can be shown something in their left eye, which connects to the right side of the brain, and they will see that image and have knowledge of that image, but it will be unknown to the side of the brain that can verbalize that knowledge. If a split brain person is shown a picture of a cat in their left eye they will say they didn’t see anything, but when they are asked to guess at which picture they saw from a variety of pictures they will pick the cat.
It only gets more interesting from there, when both eyes are shown different pictures and a person is asked to point at the image he saw, their two hands will each point to a different picture. While that’s pretty neat what happens when the person is asked why they are pointing to two different images, as they don’t seem puzzled at all. The answer given is something to the effect that, “I’m pointing at the shovel and the chicken because you need the shovel to clean out the chicken coop.” The mind is making up out of whole cloth a story to make sense of the situation, the problem being that, that story has no relationship to the actual reason the person was pointing at the two objects.  

These facts are ignored for numerous reasons. They aren’t what people want to believe so confirmation bias works against them. They are incompatible with religious beliefs and there is a general discomfort about where responsibility and accountability when personal choices are knowingly coming from an unconscious level. Yet, while the reasons for our decisions and the impulses seem to come from the unconscious level there has been some clawing back of control with the findings of dFMC studies, where consciousness seems to hold a veto power over the impulses that are presented to it. 

Marcel Brass and Patrick Haggard had people make choices and then watched them using an fMRI machine. Like in the previous tests the person making the choice was to press a button, but this time the person could change their mind after their initial decision. When the person changed their mind the left dorsal frontomedian cortex (dFMC) was engaged. There is a correlation across people between inhibition-related dFMC activation and the frequency of inhibited actions, or as Michael Shermer simply puts it, “…the more you learn to suppress your impulses, the better able you are to activate your dFMC to further suppress future impulses.” Page 340 The Moral Arc.  

Now given that the evidence shows that people are unconscious in many of the motivations and that the mind is capable of rationalizing after the fact it makes the retributive part of punishment almost irrelevant, as the severity of the crime has to be at least partly mitigated by the lack of conscious decision making behind any crime.

There is an example of this type of diminished capacity in the case of sleepwalkers, as they are acting out and their mind has a great deal of control, just these people lack the conscious awareness of what they are doing.

Science has shown that we are all sleepwalking to some extent, as are conscious thought is made up of rationalizations that differ completely from the real reasons for a given action. This masking of reasoning creates a situation of diminished control, not a complete lack as in the case of sleepwalking, but enough so that punishing a person for the sake of punishment doesn’t seem very just. The punishment should be an optimal balance between the interests of society and the person being punished, not a judgment to be anchored to the crime committed. Let the punishment fit the goals of society and the offender! Well, that doesn’t quite have the same simplicity and ring to it, but big issues can rarely be simplified in such a way anyway.  

This leads to the idea that all crime is mental illness, as it is the programs of the mind creating poor choices and an improper functioning of the dFMC that failed to control those impulses that lead to the crime being committed. If the brain was working correctly and weighing the choices correctly crime should not exist at all. This is assuming that laws and punishments are created in such a way that it wouldn’t be worth the consequence of the action. This is where the severity of punishment can start to be linked back with the potential gain of the crime committed, as it takes more server/differing punishments to make different crimes not to be worth attempting. As the potential of hours of community service should be sufficient to stop small thefts but wouldn’t be sufficient to ward off large-scale heists.

That’s the argument for a differing scale of punishment based on deterrence, but the other three parts of justice also require specific consequences for different actions. Rehabilitation should be interworked as a science-based medical approach that should be integrated with sentencing, especially with so much crime involving drugs or diagnosable mental illness. Incapacitation also ranges greatly from the type of offense as Louis Theroux shows in A Place for Pedophiles.  Lastly, and most obvious is that the amount of damage done by different crimes differs, and as it differs so should the punishment for that crime.

This means that even in a completely deterministic system where people have no control over their actions and no freewill there still has to be punishment, as it is necessary not because the person is at fault, but because punishment is required for laws to work. Not only does there have to be punishment, but that punishment should be different based on society’s goals for punishment and the goals of the offender. This does beg the question of the necessity of laws, as I have presumed that they are necessary, but the necessity of law is the subject of another post altogether.

It may have been noticed that twice I have referred to the goals of society and offender, and the thought may come that only the goals of society matter after a person has committed a crime. Let that thought die, as when society becomes unfettered by the goals and respects of the individual true atrocities can be and will be committed. Without taking into account the goals of the individual, there would be no reasons at the level of the society to not just purge those individuals that are hard to incapacitate, impossible to deter, unable/unwilling to be rehabilitated, or lock into servitude those who couldn’t repay their actions. 

It's been a while, but thanks for reading

-The Moral Skeptic 


  1. interesting to hear someone's very honest and well parsed out thoughts over years. Thanks! I have a suggestion that I think you may like. What if we simplify, take out morality and instead just think about incentives, disincentives and the relative weights of each within a system. For instance, the "stickiness of social manners I n a grocery store vs. days before/after a natural disaster, or black Friday for that matter.)

    1. Yeah I think you kinda have the same understanding. Where personal moral outrage isn't given any credence. Instead there is the balance between what is best for society and what is best for the offender. I'm not sure I fully understand your example though.

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  2. Awakening post to read and it creates a common sense among readers too. Thank you.

  3. I really appreciate your professional approach. These are pieces of very useful information that will be of great use for me in future.