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Busted

Neuroscience and retributive justice

brainwashed
http://www.amazon.com/Brainwashed-Seductive-Appeal-Mindless-Neuroscience/dp/0465018777/ref=sr_1_1?s=books&ie=UTF8&qid=1378173608
What is true about these theories is not new, and what is new is not true.

~ Hermann Ebbinghaus (1873) on Hartmann’s Philosophy of the unconscious

With Brainwashed: The seductive appeal of mindless neuroscience, Sally Satel & Scott Lilienfeld have written an excellent book on contemporary neuroscience and its limitations. The authors are rigorously pro science and they favor technological progress. They caution, however, against inflated expectations and hasty applications. Satel & Lilienfeld note that some of the things that have long been known about behavior and experience can now be represented in image form. However, a conversion to a pictorial format by itself does not necessarily offer a deeper conceptual understanding, although it may appear that way. The authors term this added pictorial layer neuroredundancy. Sometimes, inferences drawn from neuro images turn out to be worse than traditional inferences. Specifically, there are many examples of the reverse inference fallacy. If we know, for instance, that the amygdala are particularly active when a person is angry, it does not follow that a person is angry when the amygdala are particularly active. The amygdala can be, after all, active in many diverse contexts. The problem of reverse inference is a common one in brain science because there are few structures that are highly specialized. The cranium is too small to house a specialized structure for each conceivable task. The brain works so efficiently precisely because it does not rely on structural overspecialization. Instead, the brain gains its power from its extraordinary degree of interconnectivity. The answer to what the brain is doing often lies in complex patterns of activity and crosstalk between and among structures.

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The study of complex probabilistic patterns does not appeal to the consultant industry or those who pay for its services. They prefer simple stories about where to find anticipation, desire, guilt, fear, or a hankering for Wheaties in the brain. And so we get neuromarketing and neurolaw, among others. When it comes to sound-bite inferences about how we can use neuroscientific results to sell Coke, find happiness, and attain justice, Ebbinghausens acid remark on Hartmann’s philosophy of the unconscious comes to mind.

In the final chapters, Satel & Lilienfeld present a thoughtful discussion of free will before moving on to questions of moral responsibility and justice. With regard to free will, they note that there is none if we take the term seriously, that is, if we want the will to be free from any antecedent causes. I agree. Following Hume and the compatibilists, the authors note that there still is a case for human agency. Our motives, desires, and intentions do not arise ex nihilo; they arise from the causal past. Motives, desires, and intentions then cause actions, and inasmuch as the motives, desires, and intentions are the person’s own and not somebody else’s, so are the actions. Thus, a person becomes an agent, not an automation. Again, I agree (mostly).

Satel & Lilienfeld object to the attempts of some prominent neuroscientists, such as Joshua Greene & Jonathan Cohen, to fortify the case for physical determinism by bringing motives, desires, and intentions to the light of the brain scan. Satel & Lilienfeld observe that once you see brain states that correlate with, say, the desire for sugar, that desire does not become any more real and materialism does not become truer. Most of us already accept the view that desire is a biologically encoded psychological state. Satel & Lilienfeld part company with Greene & Cohen in a more significant way. Whereas Greene & Cohen infer from their data that individuals are not responsible for their actions because they are not responsible for their brain states. Punishment makes sense as an effort to change future behavior, but not as payback for past behavior. This is the perspective or utilitarianism. Only future consequences matter, and therefore, punishment should be calibrated according to its deterrent potential.

In contrast, Satel & Lilienfeld maintain that retributive justice is necessary. Retributive justice, or the justice of just deserts, metes out punishment according to the gravity of the offense. Its rule is proportionality, and proportionality is taken to mean equality. Retributive justice is prominent in early texts, such as the Torah or the Koran, and it dominates human intuition. The authors report, for example, that anthropologists have found the taste for just deserts to be nearly universal.

What is the case for retributive justice aside from noting that many humans want it? Satel & Lilienfeld report on studies demonstrating people’s preference for retributive justice. They cite Carlsmith & Darley, who concluded that “people want punishment to incapacitate and deter, but their sense of justice requires sentences proportional to the severity of the crime.” This is how Satel & Lilienfeld proceed to define retributive justice. “The point of punishment is to make perpetrators suffer in proportion to the harm that they have already caused the victim and society.“ This argument flirts with circularity. If we justify the superiority of retributive over utilitarian justice with the observation that most people prefer retributive justice, we have made no progress. We are, essentially, begging the question of why retributive justice is superior.

Are there other advantages? Satel & Lilienfeld press on by asserting that “when retribution is applied in the real world, it inescapably carries great practical value.” They suggest that only retributive justice satisfies the populace’s confidence in society and its enforcing organs. Chemically castrating a rapist may rule out future rapes by this individual, but the victim will still “feel unavenged and therefore devalued and dishonored.” The victim, and others, will demand future suffering to ‘justify’ past suffering (assuming that the effects of permanent desexualization do not count as suffering). Satel & Lilienfeld quote Clarence Darrow, a defense lawyer of the 1920s, who “received “stacks” of letters that were, as he described them, “abusive and brutal to the highest degree,” sent by those who wanted his clients hanged.” Satel & Lilienfeld invite us to endorse this hate mail as morally superior to Darrow’s non-draconian views. They report that most jurists, “often speak of their moral duty to satisfy the victims and their families” [and seek to provide] a symbolic way to help the victims heal.” Again, this seems circular. The justice of just deserts is being justified with the observation that most people demand it.

Satel & Lilienfeld worry that if offenders received utilitarian punishment, that is, punishment that falls short of just deserts’ proportionality, the community would conclude that anyone can breach norms and laws with little consequence. This view raises the specter of chaos and social disintegration. However, if punishments empirically turned out to be too lenient to deter, they could be stepped up until a satisfactory level of deterrence was achieved, but this level might well be below the proportionality threshold.

Satel & Lilienfeld also think that punishment should occur in full public view. The idea is that the offender’s public suffering will be particularly effective in restoring honor to the victim, social cohesion, and respect for the law among all. If so, why do we no longer hang murderers and traitors in the town square? There is a reverse inference problem here. Even if it is true that the respect for the law is enhanced by the witnessing of executions, it is probably also true that many viewers would seek out executions for morally suspect reasons. It’s a thrill all right.

Finally, Satel & Lilienfeld note that people tend to blame the victim when retribution has not been achieved. When people’s “intuitions of justice are satisfied, their belief in a just world is supported. But when subjects (read: society) are prevented from restoring justice, they blame the victim.” Now, the belief in a just world is a famous reasoning fallacy. It should be addressed by setting the observers straight and get them to not blame the victim. Instead, Satel & Lilienfeld recommend retributive justice as the cure. If the victim does receive retributive justice, the condition for the just-world fallacy has been removed. To add suffering to the world (e.g., by hanging, castrating, or the severing of hands) may remove the opportunity to blame the victim, but it does not make people more rational or more moral. It just adds pain.

Satel & Lilienfeld ask us to remember that some crimes do not have a statute of limitations. Who would object to the pursuit and bringing to justice of centenarian Nazi war criminals quietly living in Patagonia? My intuition that war criminals should be prosecuted and punished is as strong as the next person’s. This intuition does not do much, however, for a rational justification of retributive justice.

Coram obliviscar. The utilitarian, or consequentialist, perspective has a certain empirical logic. In theory, one might be able to figure out where the sweet spot lies at which a maximum of deterrence is achieved with a minimum of harm. In practice, however, finding this spot must be extraordinarily difficult. The retribution perspective may seem simpler, and thus more realistic, because it does not require any forecasting; all it requires is an assessment of proportionality. This too is probably more easily said than done. What is the retributive value of a parking ticket? The theft of a gold watch? The murder of 1,000 people? In the latter case, 1,000 hangings are pointless. Does torture pre-hanging achieve proportionality? I just see it as inhuman cruelty. Perhaps something is to be said for symbolic punishment after all. Bernie Madoff was sentenced to 150 years in prison for defrauding thousands of people of billions of dollars. If his victims get more satisfaction out of a 150-year sentence than out of a 100-year sentence, they are not being rational, but the moral muscle rarely is.

Postcast. If retributive justice is a theocratic idea, god is not of one mind. In Deuteronomy 19:21 he demands “you shall not show pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.” Interestingly, the verse before (19:20) puts the retributive argument in a context of deterrence. “The rest will hear and be afraid, and will never again do such an evil thing among you.” By the time we get to Revelation (21:8) god has become more vengeful, not less. Reveals he: “But the fearful, and unbelieving, and the abominable, and murderers, and whoremongers, and sorcerers, and idolaters, and all liars, shall have their part in the lake which burneth with fire and brimstone: which is the second death.” Deterrence is not at issue because this is a final judgment. And proportionality is thrown to the wind.

Satel, S., & Lilienfeld, S. O. (2013). Brainwashed: The seductive appeal of mindless neuroscience. New York: Basic Books.

 

Joachim Krueger, Ph.D., is a social psychologist at Brown University who believes that rational thinking and socially responsible behavior are attainable goals.

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