Crime and Causality: Do Killers Deserve to Die?
Thomas W. Clark
Even if one supposes that capital punishment is morally justifiable, there are many good reasons to oppose it. These include the fact that those wrongly found guilty are sometimes sentenced to death, and, in all likelihood, some of these have been, and will be, executed. Death sentences have historically reflected racial bias, in that they are more likely to be imposed if a murderer’s victim is white as opposed to nonwhite. Being subject to capital punishment often hinges on the quality of one’s legal counsel, which itself depends on one’s economic status, so the poor are more likely to be executed than the rich. And, of course, there are significant regional differences in prosecutorial policies that make convicted killers more likely to die for their crimes in the South than in the North.
Since the Supreme Court declared capital punishment “cruel and unusual” on the basis of the Eighth Amendment in 1972, states have sought to draft death-penalty statutes that would avoid blatant disparities in application. Although many of these statutes have passed constitutional muster, significant arbitrariness in sentencing still exists, and the innocent still face the risk of execution. In response to the well-documented incidence of wrongful capital convictions, Illinois instituted a moratorium on capital punishment, and other states are taking a hard look at how to ensure the accuracy of verdicts. In Massachusetts, for example, the governor convened an expert panel to draft a death-penalty law requiring use of the latest forensic science to prevent any miscarriage of justice.
The strategy for opponents of the death penalty is, it seems, to expose a procedural defect in its application, while death-penalty proponents simply respond by remedying the defect. Noticeably left unaddressed by this strategy is the more basic issue of the moral justification for capital punishment. Put bluntly, do certifiably guilty killers deserve to die? Little debate has occurred on this point, which suggests that the prevailing opinion is that yes, they do.
It’s not surprising that we might be strongly predisposed to think that killers deserve execution, given our natural tendency to retaliate against those that harm us or our loved ones. Our capacity to feel retributive rage in the face of such harm evolved for good reason, for it predisposes us to deter aggressors and to eliminate threats to ourselves, our family, and our tribe. Those without at least some predilection for righteous anger and a thirst for revenge simply wouldn’t have made the evolutionary cut. So the felt justice of capital punishment, especially if you’re closely related to the victim, isn’t hard to explain.
But this still begs the question of the moral propriety of acting on our retributive impulses, even in the measured, judicially restrained compass of a courtroom. The desire to inflict suffering and death on those who knowingly take the life of someone we love may be natural, but that alone doesn’t make acting on it just. After all, there are many naturally arising impulses that we don’t condone consummating, as evidenced by widespread secular and religious injunctions against such things as murder, theft, adultery, and dishonesty. Deciding whether executions are morally permissible should involve a considered judgment that takes into account not just gut feelings, but the reasons that might justify acting on them.1
It’s clear that retaliation to the death is no longer necessary to protect ourselves from murderers, and the deterrent effect of executions is very much open to question. Execution, after all, models the very crime being punished. It’s not surprising, therefore, that most countries in the world have banned capital punishment, seeing no practical need for it.
But the most fundamental justification for supposing that killers deserve to die, and that executions are morally permissible, still remains. It is that killers have free will, the capacity to have chosen otherwise in the exact situation in which the murders took place. Such freedom means that choices and actions are, in some basic, metaphysical sense, the human agent’s alone. Whatever the causal antecedents of character, motive, and behavior, we are not simply the working out of such factors. At the moment of choice, we originate something independent of natural causality, something that makes us ultimately responsible and thus deeply deserving of praise or punishment. Susan Smith, whom the prosecution argued killed her two young sons to advance a love affair, was not fully caused to act precisely as she did but instead let her car roll into a South Carolina lake of her own free will, her children strapped inside. Likewise, Gary Lee Sampson, sentenced in 2003 under federal law in Massachusetts to die for multiple murders, chose to kill, and that choice was in some fundamental sense strictly his own doing.2
The difficulty is that this age-old belief about human choice seems less and less plausible the more we learn about ourselves. Recent work in genetics, neuroscience, and behavioral psychology is rapidly fleshing out the causal story of how the brain—the physical seat of consciousness, character, desire, and rationality—is entirely shaped by biological and environmental influences and interactions. Behavior, and decision making in particular, can be understood as functions of the brain-body control system, which needs no nonmaterial, causally uninfluenced supervisor of neural processes—no soul or “ghost in the machine”—to deliberate effectively and make choices. Where, then, is the buck-stopping, freely willing agent that could have done otherwise as a situation unfolds? Neuroscience is telling us, as Tom Wolfe so unkindly put it in the title of a 1996 Forbes Magazine essay, that “Sorry, but your soul just died.”
The death of the supernatural soul, and along with it contra-causal free will—what philosophers call variously libertarian, Cartesian, or interventionist free will—is a central concern of a number of recent books by philosophers and cognitive scientists. Steven Pinker, in chapter 10 (“The Fear of Determinism”) of The Blank Slate, argues that we should make our peace with determinism, drop the belief in the ghost in the machine, and justify punishment on grounds of deterrence only.3 Derk Pereboom, a philosopher at the University of Vermont, writes in his book, Living Without Free Will, that giving up the belief in free will “would not have disastrous consequences, and indeed it promises significant benefits for human life.”4 In Freedom Evolves, Tufts philosopher Daniel Dennett admonishes us to be content with the sorts of freedom that are compatible with being fully determined creatures,5 and, in perhaps the most forthright dismantling of free will yet written for laypersons, Duke professor Owen Flanagan argues in The Problem of the Soul that the viability of our naturally evolved moral intuitions doesn’t depend on being uncaused choosers.6
The common message of these books and the burgeoning scientific research on human nature is that there is no evidence to show that human agents escape being caused in each and every respect. Regarding the death penalty, this means that those who kill don’t do so because they somehow rise above causal influences. Killers, like ordinary folk, are fully a function of a complex set of biological, familial, and social processes, and were any of us dealt exactly same genetic and environmental hand as, for instance, Susan Smith or Gary Lee Sampson, there’s no reason to suppose we would have acted any differently. Put more positively, had either Smith or Sampson been dealt a different hand, then it’s quite likely they would never have killed.
Much homicide is directly or indirectly attributable to factors that compromise a person’s character and self-control, such as childhood abuse and brain damage that impairs prefrontal cortical functioning, genetic predispositions to psychopathy and other personality disorders, substance abuse, and exposure to environments in which violence is a standard method of resolving disputes. But, of course, the deterministic story behind murder need not involve obvious brain abnormalities or diagnosable syndromes—it sometimes lies in the rational, deliberate plans of contract killers or the frenzy of lynch mobs. But either way, whether killing is calculated or impulsive, the product of a diseased or normal brain, on a scientific understanding, contra-causal free will plays no role.
This means that murderers—even the most cold-blooded, sadistic “monsters” such as John Wayne Gacy—have not chosen their characters, their motives, or their behavior from some unconditioned vantage point that makes them self-caused originators of their crimes. They are, it is true, the most proximate cause of behavior that must be condemned and contained, but they are neither ultimately responsible for their misdeeds nor metaphysically deserving of death, as much as we might wish it. It seems that retributive justifications for executions wither under the gaze of science, in which case, the basic morality of capital punishment is called into question. Once we drop the notion of libertarian free will, those who insist that murderers deserve to die must show precisely on what alternative basis retribution might be justified.
Retributive emotions are most strongly evoked in the penalty phase of a murder trial, in which the prosecution seeks to prove that the crime involved aggravating factors, such as deliberate, excessive suffering inflicted on the victim. Prosecutors incite the jury’s desire for death by emphasizing the gratuitous cruelty of the crime, while disparaging any causal story that might account for the murderer’s motives and behavior. The murderer is portrayed as a self-created monster: rational, fully capable of controlling his or her behavior, but willfully malevolent—all of which heightens our tendency to focus retributive blame on the freely willing agent that could have done otherwise, but chose not to.
Oppositely, the defense tries to prove the existence of mitigating factors, which often involves demonstrating some sort of mental illness or defect or showing clearly the causal story (often, but not always, a story of abuse or neglect) behind the offender’s deeply flawed character and actions. Establishing such causes has the effect of undercutting the prosecution’s portrait of a self-created monster, therefore lessening the strength of the retributive impulse felt by jurors. So the penalty phase of a murder trial is really the playing out of these two opposing tendencies—the desire to punish and the capacity to understand. The outcome—life in prison or death—is determined by the extent to which the offender is perceived to possess a free will that trumps causal explanations of his or her behavior. But whatever the outcome, the fact remains that on a scientific view of ourselves, causal explanations always trump—and indeed entirely invalidate— contra-causal free will.
Some might suppose that dispensing with free will amounts to universal exculpation— that to understand is necessarily to excuse. But, even in the light of science, our moral standards of right and wrong remain intact; we still find murder abhorrent, and we must still protect ourselves from dangerous individuals. Likewise, we can still distinguish the sane from the insane, the immature from the mature, those who act voluntarily from those who act under duress; and so the concept of a responsible agent—an agent that it makes sense to hold responsible in order to shape moral behavior—still has footing, even though all agents are fully determined in their actions.
Writing in the 2000 Southern California Law Review, University of Pennsylvania law professor Stephen Morse says “[W]estern theories of morality and the law . . . hold some people responsible and excuse others, and when we do excuse, it is not because there has been a little local determinism at work. For example, we do not hold young children fully responsible because they are not fully rational, not because they are determined creatures and adults are not. Determinism and causation do not loosen their grip on us as we age.”7 But according to Morse, once we’ve accepted that behavior is fully caused, a primary goal of holding agents responsible and accountable is what he calls “guiding goodness”—that is, encouraging good conduct.8
The retaliatory impulse may have served us well in our prescientific past, but understanding (as our ancestors did not) that persons are not self-made means that pursuing retribution to the death, while ignoring the actual causes of homicide in culture and biology, is itself an immoral abdication of the responsibilities conferred on us by our new knowledge. If we take science seriously, we must look outside individuals (at the culture) and inside them (at the biology) to understand, and eventually control, the factors that shaped them and led them to kill.
Such a causality-driven, prevention-focused approach to homicide and other serious crime would revolutionize our conception of criminal justice, moving from the imposition of “just deserts” to the enlightened pursuit of a less violent society.9 Such work might well begin with reform of the penal system itself, which arguably does far more harm than good in its unnecessarily harsh, often inhumane treatment of offenders, who return to their neighborhoods more dangerous and hardened than ever. Involuntary detention to serve purposes of deterrence, incapacitation, and rehabilitation will of course still be necessary, but whether it need involve a punitive component is very much in question. Indeed, there are many criminal-justice reform movements already underway, some of which seek to change the basic mission of courts from after-the-fact administration of punishment to solving the social problems that produce crime in the first place.10 A better appreciation of the determinants of deviance should help to build support for such reforms.
But all this assumes that we should take science, not traditional dualism about the soul and free will, as criteria when deciding momentous questions about human nature, criminal justice, and the justifications for punishment. The argument about the proper basis of knowledge (science vs. folk wisdom) and therefore human nature (natural vs. supernatural) lies at the heart of the culture wars: Where should we place our cognitive allegiance, and what sort of creatures are we?
Many have resisted, and will continue to resist, the epistemic authority of science, since it requires us to abandon those beloved conceptions of freedom, dignity, moral agency, and responsibility in which persons are understood to be causally privileged over the rest of nature. (Hence the widespread rejection of behaviorist B. F. Skinner’s rather tactless deconstruction of free will in the 1960s and 70s.) In their place, science proposes naturalized, pragmatic conceptions of freedom and responsibility that embed persons, even in their highest capacities, fully within the causal networks it reveals. Such conceptions not only undercut our status as godlike first causes, but as the example of capital punishment shows, they support the proposition that it may be morally better to forgo some personal gratifications in favor of solutions to social problems that take into account the full causal story behind behavior.
It is no wonder, then, that few are rushing to embrace a naturalistic view of ourselves, given the inconvenient implications for our self-image and social policy. But in the long run, the moral wisdom and practical benefits of siding with science, not tradition, may yet win converts, and support for capital punishment might decline. At the end of his book, The Death Penalty: An American History, University of California at Los Angeles law professor Stuart Banner contemplates this possibility:
The death penalty is so popular that abolition will be impossible without a significant shift in public opinion. Such shifts have occurred several times in the past 250 years, however, and may occur again. In the past they have been caused by changing attitudes about the extent to which crime is a consequence of the criminal’s free will, changes that seemed to flow from better understanding of human behavior. We can expect similar developments in the future. . . . [T]he balance of Americans’ beliefs about free will is not likely to remain static forever. When it changes, so too will opinion on capital punishment.11
©2004 Thomas W. Clark, Center for Naturalism
1. Philosopher Janet Radcliffe Richards writes that “...if we understand that there are good evolutionary reasons for our wanting people to suffer when they have done direct or indirect harm to us, then we can account for our strong feelings about the appropriateness of retribution without presuming they are a guide to moral truth.... We may be able to recognize our retributivist feelings as a deep and important aspect of our character—and take them seriously to that extent—without endorsing them as a guide to truth, and start rethinking our attitudes toward punishment on that basis” (Human Nature after Darwin [New York: Routledge, 2000], p. 210).
2. A juror commented after the trial that “If I could say anything to [Sampson], the only thing I would say is, ‘Why?’ When it comes down to it, you really have a choice. He didn’t have to do what he did. That’s what he picked to do.” Boston Globe, “Juror says Sampson inspired little sympathy during trial,” by Peter DeMarco, December 31, 2003, page B3.
3. Steven Pinker, The Blank Slate (New York: Viking Press, 2002), pp. 174–85).
4. Derk Pereboom, Living Without Free Will (Cambridge: Cambridge University Press, 2001), p. 212.
5. Daniel Dennett, Freedom Evolves (New York: Viking Press, 2003), p. 225.
6. Owen Flanagan, The Problem of the Soul (New York: Basic Books, 2002), p. 265–319.
7. Stephen Morse, “Rationality and Responsibility,” Southern California Law Review 74(2000):259.
8. Stephen Morse, “Reason, Results, and Criminal Responsibility,” University of Illinois Law Review 2 (2004): 363–444. Earlier draft (“Guiding Goodness”) Morse holds, as I do not, that there is a further categorically deontological aspect of our responsibility practices that’s independent of guiding goodness, but our disagreement is beyond the scope of this paper.
9. Joshua Greene and Jonathan Cohen, “For the Law, Neuroscience Changes Nothing and Everything,” Philosophical Transactions of the Royal Society of London (Science B), 359 (2004): 1775–1785, online here (In pdf format.) or online here. It argues against retributive punishment on precisely the grounds I adduce here: the nonexistence of contra-causal free will.
11. Stuart Banner, The Death Penalty: An American History (Cambridge, Mass.: Harvard University Press, 2002).
The above article is from Free Inquiry magazine, Volume 25, Number 2.
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