Justice and Mercy and Avoiding Assigning Blame

Why do people feel the need to assign blame for unfortunate events? Is the cause of a tragedy or crime always one singular person’s will? Is it more productive and ethical to forget about blame (entirely?) and concentrate on fairness and justice and protection?


There is a very thought provoking podcast on RadioLab (radiolab podcast 2013-09-12 .) The title of the episode is Blame. In one segment the story of a guy with severe epilepsy is told. This dude, Kevin, had such bad blackouts that he and his wife eventually had radical brain surgery, to literally cut away parts of his brain that were causing his fits. The procedure is interesting enough, so I will not bore you with the details, but just recommend you listen to the podcast.

The fascinating thing is the horrid case that he was arrested for by the FBI and spent some months in prison. He should have been locked away for life, but the court judge was lenient because part of his criminal defence was that he was unaware of his excesses due to his severe neurological condition. The physicians treating him, and consultant psychiatrists, gave expert testimony explaining that people with conditions like Kevin’s often have a form of schizophrenia, or multiple personality disorder (MPD), so a part of them can be committing terrible crimes while the saner “normal” character is unaware. (In fact his crimes were so shocking that I do not wish to write about them.)

This sort of MPD can even be bizarre enough that it occurs in distinct spheres of life. So while he was committing internet crimes at home, at work, when he had access to computers, there was no trace of his crimes. The prosecutor took exception to this and argued that Kevin must have been consciously aware of what he was doing, and not just acting via neurological impulses, precisely because if his behaviour was purely impulsive then he surely could not have been able to halt his criminal activity while at work. OK, so maybe he was too busy at work?

In any case, the judge did not allow his full defence. She claimed that while in his saner moods he could have taken steps to correct for his crimes. Which he did not.

Assigning Blame is Wrong, but Also Right

The moral or ethical dilemma here is that if we start using neurology to assigning blame to criminals, we can claim that they simply cannot help their behaviour. So their brain cells are guilty, but if they have any free will then perhaps they should not be treated so harshly. You can imagine a future where every single human behaviour is accounted for by deterministic brain processes and gees and upbringing. Leaving the “person” unblameworthy for their behaviour.

Which is ridiculous of course, since we have a justice system to hold people accountable for their actions.

But this raises the whole question of why we need a justice system. It is not truly for punishing wrong-doers, although some people may have conceived of the justice system in this way, and it may have even been an original motive. But surely we can agree now

Think about it! At least for me, personally, I do not really care if someone wants to shoot-up on drugs, but if they are going to harm someone else while doing it, or rob money to pay for their habit, then that does effect innocents. So such a person needs to be held accountable.

We have a good system for doing this. It is called The Law. Yeah, it coolly assigns blame and ostensibly punishes people where it finds blame. It is not perfect, but it is a good system, and it evolves and becomes better over time, it is not rigid and fixed, and it is probably the best system we can develop with current technology for assigning blame and punishing people. But this is a meta-cognitive view. It is not the only way we have to view The Law. Another way of viewing The Law, which does not change at all the way the law works, is to view it as a system for protecting people.

It is our choice how we choose to interpret the purpose of The Law. The Law itself is neutral to it’s purpose.

Where Neural-legals and Ethics Unite

This is the fascinating thing that the RadioLab folks do not quite get to, though they come close. The neurologist they interview is a keen intellect, and he gets close to resolving the issue. The thing is, we should not view the justice system as a way of assigning blame. Because the neurology argument will inevitably make this a joke. The “blame” is on a bunch of cells in the criminal’s brain. And you cannot incarcerate neural cells without incarcerating the whole person. But, the ethicists says this is precisely what we should do, but not for reasons of blame. It is for protection!

Justice, you see, is not law. A professor once pointed this out to me, Geoffrey Palmer, the former Prime Minister of New Zealand no less. He told me matter-of-factly that the law is not at all about justice. I remember feeling aggrieved at this, since I thought this is what ethical lawyers and judges were all about — making the world a more just and peaceful place.

But no. The Law is merely a system for agreeing upon rules for a society and enforcing them with as much consistently as practicable. Which is why clear and unambiguous legal drafting is much of an art, and also why deliberately making law ambiguous is also an art, because it endows the law with flexibility of interpretation, which is precisely what judges and jurists need to avoid getting caught by loopholes.

So we have a legal system on the one hand to enforce the laws agreed upon and constantly refined, debated on, and evolved by society. A society that does not debate and evolve it’s laws is morally decrepit if you ask me. This also allows escaping the problem of retroactive justice.

Retroactive Justice is Often Unnecessary

When an innocent person is convicted of a crime they did not commit, and future evidence reveals the truth, then vast reparations and apologies need to be made. But when someone who did commit a crime is later found to have a medical or psychological conditions which ostensibly “excuses them” of the crime, this is a different matter. And it gets us closer to the resolution between justice and behavioural neurology.

The justice system cannot apologise for incarcerating a dangerous person merely because their condition is biological, but was not perhaps known to be so — in the past when they were convicted. Whether you believe a person has a sentient soul and free-will is irrelevant. We should think of incarcerating people ONLY because we wish to make society safe for innocents. And in extreme cases perhaps also making the criminal safer for themselves, since a lot of criminal activity is purely self-harming. We wish, on the ethical side, to protect people form themselves as well as others. On the purely legals side, the written law is merely one way to do this within societal parameters.

The Law can be totally blind to mercy and compassion, while we who implement the law can be entirely merciful and compassionate. Which is precisely the resolution I think RadioLab struggled to find and yet could not quite articulate. It is not a horribly unethical thing to incarcerate a criminal because their epilepsy or schizophrenia or paranoia “made them” act in a way that their higher reasoning could not control. This poor person may have not ever been able to reason their own way morally out of committing the crime, but we can still forgive them on one level, and remove them from harm at another, compassionately.

And whether you believe the human drive and need to act compassionately and mercifully is also purely governed by our neurology or not, that fact is that we have higher conscious reasoning which allows us to get a “birds eye view” of this aspect of justice and the law. And this is spiritual and noble, no matter what it’s biological or spiritual origin in the human soul and mind.

Coldly implementing the law does not forbid us from being compassionate as individuals, nor merciful as a collective society.

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On a personal note, I think the judge who convicted Kevin was supremely wise. She saw him as a threat to himself and others, and she punished him for this potential. But she did so compassionately. In her verdict she explained her reasoning, both for being lenient in the length of sentence (because Kevin was clearly impaired by the medical procedure which was supposed to treat his epilepsy but which left him with this horrible MPD condition) and also she explained clearly why imprisoning him was not a vindictive decision, it was to show him that he did have means to preempt his criminal behaviour, but had chosen not to hold himself accountable in his sane moments.

And I believe she was wise in this decision. His punishment served him good purpose, which he admitted himself. And however cruel his fate may seem, (he was a victim too, a victim of epilepsy and an imperfect medical system) there is no way the judge could have assigned blame to the current medical system! It was only Kevin who could have stopped his crimes. And blame was not really the issue, as the RadioLab neurologist pointed out admirably. The issue was protection for the greater good.

The Compassion of Algorithmic Justice

At one point the RadioLab episode describes a method for predicting recidivism rates. It is a point-based system, and it has 70% predictive power, whereas human estimators (experts no less!) only achieve 50% predictive success.

The RadioLab correspondents have a bit of a strong debate about the merits of such systems for apportioning blame. They have the issue all wrong! The best predictive system is the best!

The ethical and moral concern is natural and understandable. People do not want decisions of mercy and justice to be left up to a computer algorithm. But this is entirely wrong-headed thinking!

Compassionate human beings are the ones devising and evolving the software! Human beings are the ones deciding when to use the software. It is not an abdication of moral responsibility to leave certain decisions in the hands of computer algorithms. Especially when those algorithms are known to be much more successful than human experts! In fact, it is ethically wrong to do otherwise!

Overly Romanticising Justice

When I finished the first draft of this post I paused to wonder if I had been fair. There s a danger when writing emotive opinion pieces to ignore so many factors. In my case I tend to filter out all the ugliness and focus in on what is beautiful. So I wanted to be fair, you know … JUST! So I thought I should carefully think about contrary arguments. What would they be?

Firstly, I do not think I am making a strong argument. I am merely saying that there is more than one way to interpret the purpose of The Law. But, OK, someone could say that the “for protection” interpretation is loopy, and we really should think of the Law properly as assigning blame and judging people for their wrong-doings.

Well, I do sympathise with this strong prosecutors type of stance. But there is a good reason why adversarial justice/law systems in the USA and UK have both prosecutors and defenders. They are two sides of a necessary search for truth. From the clash of the adversarial views one can hope for a sharp focus on pure evidence and all conceivable fair reasons and legal and ethical arguments. This s, after all, why the “insanity defence” has in recent years morphed a bit into a rising number of “biological determinist” defences. This is what Kevin’s defenders tried. They tried to argue that Kevin’s higher conscious, his putative free-will, was not in control during the moments of his criminal activity.

But I do not think the stance of the prosecutor nor the stance of the defender in court negate the validity of the view that ultimately The Law can always be seen as primarily serving the purpose of protection rather than punishment.

One reason for this perhaps “romantic view”, is that punishment alone serves little purpose. It usually, at least in the hands of normal people rather than psychopaths, serves the purpose of trying to discourage wrong actions, both from being repeated and from being done in the first place (punishment of the guilty as warning to others).

Justice is Beautiful

So the take-home message for this post is that the Law is only a means to an end, and we need to start thinking of the ends of the Law as protection for society, not as merely a method of punishment or assigning blame. And this resolves all the paradoxes which will otherwise crop up as neurology advances and informs us of why people may do certain strange this. And it it is this attitude we have towards the purpose of the Law which is where we find our higher sense of Justice. The Law can be ugly, but Justice is always beautiful.

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CCL_BY-NC-SA (https://creativecommons.org/licenses/by-nc-sa/4.0/legalcode)


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