Questions of justice and punishment grow out of moral heuristics. Consider this story: Two friends are drinking at a local bar all afternoon, and they drive home separately. One falls asleep at the wheel and drives on to a neighbor's front yard, destroying some shrubbery. The other driver also falls asleep at the wheel and drives on to a neighbor's front lawn, but the neighbor's five-year-old daughter happens to be playing on this lawn. He runs her over and kills her. Identical behavior, most would agree, but do the two friends deserve the same punishment?

Not under the law. In many locales, the first driver can expect to pay a $250 fine for driving under the influence of alcohol. A slap on the wrist, really. The second drunk driver faces the possibility of years in prison for manslaughter. Is this fair? Isn't their wrongdoing identical?

Yes and no. When it comes to judging what's right and wrong, intent matters a whole lot. But when it comes to punishment, consequences matter. When Harvard psychologist Fiery Cushman gave volunteers this hypothetical in the laboratory, most agreed that the two friends were equally wrong. But they did not believe that a driver should do a long stretch in prison for destroying a mere shrub, nor did they think a driver should get off the hook for killing a child. And most of us would probably agree: different consequences, different punishments.

So if there is a detective in our neurons, who makes decisions about guilt and complicity, there is apparently also a lawyer in our neurons, and the two don't seem to talk to each other all that much. The detective just wants to know if a crime occurred and who did it, while the lawyer is concerned that the punishment fit the crime. To make this point, imagine that there was a third friend drinking at the bar that afternoon.

But this guy is evil-a real sociopath. He leaves the bar actually intending to run the little girl over with his car and kill her, but because he's drunk, he falls asleep and crashes into the shrubbery instead. No harm, no foul? Almost everyone would say that he is infinitely more immoral than the other drunk who ran into the shrubs, even though the incidents look identical. Indeed, he's more reprehensible than the drunk who accidently committed manslaughter. But the law doesn't see it that way.
That's because the law is a product of the plodding, deliberate rational part of the brain. Laws were written down by civilized societies-by a collection of rational brains-to codify our collective moral reasoning. But they don't adequately capture our moral intuitions, the gut responses to the visceral nature of crime and to evil intent. Judging something as wrong is a moral intuition; a heuristically-driven rule. Judging the harm to others and how to even the score-that is a slower, more deliberate act.

The primacy of moral heuristics can lead to other questionable judgments as well. Consider terrorist attacks. When the al-Qaeda terrorists destroyed the World Trade Center on September 11, 2001, the criminals were a tragic real-life version of the sociopathic drunk driver above-except they didn't fall asleep and fail in their mission. They had evil intent and the succeeded, and their act had horrific consequences-more than 3000 innocent people dead. Guilt was so clear and outrage so justified, that the inner detective didn't have much to do.
But what about the 1993 al-Qaeda attack on the World Trade Center? It failed out of ineptitude, but the intent was no less evil. The terrorists did kill six people, but they botched their larger goal of bringing down the towers. It's very much like the evil drunk falling asleep and running into a shrub, and indeed it was treated that way. No overreaction against Muslims, no recriminatory war, very little public outrage at all. It's hard to muster outrage for a failed crime-even when the intent was to kill thousands, just as their compatriots did on 9/11.
My new book, On Second Thought: Outsmarting Your Mind's Hard-Wired Habits, includes a chapter called "The Whodunit Heuristic: Murder and Morality," from which this short excerpt is adapted.

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