Insanity & Responsibility

If, as seems very likely at this point, Jared Loughner is mentally ill, that will raise questions about sanity and responsibility that we have had a hard time resolving. The insanity defense, in particular, remains very controversial. What ought to be done with Mr. Loughner?

Punishing criminals is one of the most awesome tasks of government. By awesome, I mean properly fear inspiring; and by government, I mean us. There are three good reasons to deal out punishment. First and foremost, we punish the guilty for the same reason as we protect the innocent: because they deserve it. Second, let the promise of punishment stand in order to discourage the temptation to commit crimes. Finally, we imprison and execute people who have committed crimes so they can't do it again.

The first two principles rest on the concept of moral responsibility. Some neuroscientists believe that recent advances in their field have undermined the concept of free will and some, a smaller number perhaps, think that this undermines the concept of responsibility. If every human decision is a perfect function of subconscious events in the brain and environmental factors, then in one sense the most sane and stable individual is no more responsible for his actions than an automatic stoplight.

I believe in free will in the robust sense. I think that an act of human deliberation is not strictly determined by preexisting conditions. The concept of moral responsibility, however, does not require such a belief. Punishment is an expression of the collective moral sense. We punish because we think that people ought not to do certain things to other people. That collective morality is something very precious. A society in which most people didn't think there was anything wrong with rape would be a much worse society for women to live in. If you think that social behavior is determined by social factors, you ought to be just as concerned that the moral sense remains among those factors as someone who believes in robust free will.

Likewise, precisely if you believe that human action is determined, you want to keep punishment as one of the determining factors. To be sure, the law is not nearly as effective as we wish it were, but you do want the criminals to clear out when the patrol car shows up.

Both punishment as retribution and punishment as deterrence allow for an insanity defense. It surely seems the case that some people are so mentally ill that they cannot be held morally responsible for their actions. Just as someone pushed off a ledge isn't responsible for hitting someone on the street below, a man who was incapable of resisting the impulses of his dysfunctional brain and/or could not recognize that he was killing a real human being cannot be held morally responsible for his actions. Recognizing that does no harm to the general moral sense.

Likewise, sane people can weigh the legal consequences of their actions even if the mental scales they use are not really under their control. Someone so unbalanced that he cannot make that calculation will not be responsive to legal sanctions. There is no point, then, in trying to deter someone like that with a threat of punishment. The view that moral responsibility is compatible with determinism is called, aptly enough, Compatibilism.

The insanity defense is altogether in order, for defendants who are genuinely insane. It is rarely used, and even more rarely does it succeed. We ought not to abandon it, however much we fear that it may be abused.

There is, of course, the fear that by refusing to hold the criminally insane legally responsible for their actions, they will end up being freed to do terrible things again. That is the third principle of punishment. There is a simple solution to that problem, one we already apply in many cases. Let's codify it.

If a person is found by a court to have committed a violent criminal act and is found to be legally irresponsible by reason of insanity, that person should be confined to an institution for the rest of his life. No exceptions. If that person receives treatment and regains sanity, fine. He still spends the rest of his nights in a bedroom locked from the outside.

That takes care of the third principle for offenders who really satisfy the standards for an insanity defense. For those inclined to fake such a defense, well, lifetime in the loony bin looks like about as good a deterrent as life in the slammer. It sounds worse to me. Eating lunch every day with a gaggle of cutthroats, you might at least expect some interesting conversation. If everyone else at the table is mumbling and trying to sculpt the mashed potatoes, welcome to Hell.

Comments

[larry kurtz]

This is the best post of the three, KB, and one of best arguments ever written by a South Dakotan for the abolishment of capital punishmen. I raise: http://interested-party.blogspot.com/2011/01/domestic-terrorism-awake-in-red-states.html

[larry kurtz]

Four.

[KB]

Thanks, Larry. Odd that this best of four attracted on your two comments.